On April 1, 2020, the National Labor Relations Board (the “Board”) finalized a new rule on the union election process, revising its policies concerning blocking charges, voluntary bars, and the process by which unions in the construction industry may establish majority support. Our client alert on the Board’s final rule can be found here. Due to the ongoing national emergency caused by the coronavirus pandemic, the Board has postponed the June 1, 2020, effective date by 60 days. The new effective date is July 31, 2020.

The Board determined that a delayed effective date is required to allow the Board’s employees and stakeholders to focus on continuity of their operations during the coronavirus pandemic, rather than on implementing and understanding the Board’s new rule. The Board dispensed with notice and comment procedures in delaying the effective date of the final rule pursuant to the Administrative Procedure Act (“APA”). Under Section 553(b)(3)(B) of the APA, an agency may issue a final rule without seeking comment prior to rulemaking upon finding of “good cause” that those procedures are “impracticable, unnecessary, or contrary to public interest.” In dispensing with notice and comment procedures to delay the effective date of the final rule, the Board reasoned that: (1) given the ongoing pandemic and national emergency, regulated entities should be focused on mitigating that pandemic’s serious ramifications and on understanding their significant responsibilities and obligations under the pandemic relief laws enacted by Congress in the last month; and (2) proceeding directly to the final rule is appropriate because the change is a minor, technical correction.

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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 April 2, 2020, the State of New York passed its budget for the 2021 fiscal year, which included important additions to the State’s paid sick leave laws. As we previously alerted, on March 18, 2020, in response to the COVID-19 virus, New York passed an emergency paid sick leave law. The new state budget enacts a permanent paid sick leave program for working New Yorkers. The program is set to go into effect at the beginning of next year.

Under the new law, workers will accrue one hour of paid sick time for every 30 hours worked. This is the same accrual rate utilized by New York City and Westchester county. Employers who employ 100 or more workers must provide at least 56 hours of paid sick leave per year. Employers with between 5 and 99 employees must provide at least 40 hours of paid sick leave per year. Employers with four or fewer employees will be exempt from paying sick time, but must guarantee 40 hours of job-protected unpaid sick leave to their employees every year. New York State’s new sick leave program guarantees most employees in the State the right to paid time off from work. The law will work in concert with existing city and municipal paid sick leave laws. If a local paid sick leave program provides greater benefits than the new program, an employee would be entitled to the former. Under the new law, the paid leave obligations of most New York City and Westchester county employers will remain the same, but employers of over 100 employees throughout the State will have to grant their employees at least 16 additional hours of paid sick leave per year

 

Takeaway for Employers

Employers are encouraged to review their existing paid sick leave programs for compliance with the law before it goes into effect on January 1, 2021.

 

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

Putney, Twombly, Hall & Hirson LLP

To qualify for paid leave pursuant to the New York Emergency Paid Sick Leave or New York Emergency Paid Family Leave, employees must obtain a mandatory or precautionary order issued by the State of New York, the Department of Health, a local board of health, or any government entity authorized to issue such orders due to COVID-19.

The New York State Department of Health (“NYDOH”) has recently issued guidance on how employees may obtain orders of quarantine and isolation. See NYSDOH’s Obtaining An Order and New York Paid Family Leave COVID-19: Frequently Asked Questions. Critically, the NYDOH guidance provides that employees may submit documentation from a healthcare provider while waiting to receive an order of quarantine or isolation from their local board of health. However, an order or quarantine or isolation is still required for employees to be entitled to paid leave under the New York Emergency Paid Sick Leave or New York Emergency Paid Family Leave.

In the guidance, the NYDOH instructs employees to first contact their local health department to obtain obtain an order of quarantine or isolation. Local health departments are required to provide requested orders of quarantine or isolation within 30 days.

The NYDOH further advises that if employees are unable to obtain an order of quarantine or isolation from their local health department immediately, employees should submit documentation from a licensed medical provider that has treated the employee or the employee’s minor dependent child in the interim.

The documentation from the healthcare provider must attest to the following:

  • the employee qualifies for a mandatory order of isolation because (1) the employee has tested positive for COVID-19, or (2) the test for COVID-19 is currently unavailable to the employee, but the employee is symptomatic and has had contact with a known COVID-19 case;
  • the employee qualifies for a mandatory order of quarantine because the employee (1) has been in close contact with an individual who has tested positive for COVID-19 or is currently under mandatory isolation, or (2) is symptomatic and has returned from a country designated with a level 2, 3, or 4 advisory for COVID-19 within the past 14 days; or
  • the employee qualifies for a precautionary quarantine because the employee (1) is determined to have had proximate exposure with someone who has tested positive for COVID-19, or (2) is asymptomatic and has returned from a country designated with a level 2, 3, or 4 advisory for COVID-19 within the past 14 days.

After employees submit their medical documentation, employees are required to follow-up with their local board of health regarding their requested order of quarantine or isolation. Once the order has been obtained, employees must provide the order as soon as possible to qualify for paid leave.

Takeaway for Employers

Employers should permit employees to take paid sick leave pursuant to New York Emergency Paid Leave or New York Emergency Paid Family Leave once provided with medical documentation compliant with the above-listed requirements as employees may not be able to immediately obtain orders of quarantine or isolation. However, employers may still require employees to submit orders of quarantine or isolation issued by their local board of health.

 

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If you have any questions regarding the requirements for employees to be entitled to paid leave under New York Emergency Paid Sick Leave or New York Emergency Paid Family Leave, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

On March 27, 2020, in light of the many issues employers are facing during the COVID-19 pandemic, the National Labor Relations Board’s (the “Board”) General Counsel, Peter B. Robb, issued Memorandum GC 20-04 ( the “Memorandum”) on a unionized employer’s duty to bargain in emergency situations. Although the Memorandum does not provide specific advice, the Memorandum contains summaries of decisions in which the Board considered an employer’s duty to bargain in emergencies, including public emergencies and emergencies unique to a particular employer.

Under the National Labor Relations Act (“NLRA”), an employer is required to bargain with its employees’ union representatives concerning mandatory subjects of collective bargaining such as wages, hours of work, and layoffs. Specifically, employers cannot take unilateral action regarding mandatory subjects of collective bargaining without first reaching agreement with the employees’ union representatives or reaching an impasse in negotiations.

Exceptions to an Employer’s Duty to Bargain

The decisions cited in the Memorandum reiterate the Board’s standard in Bottom Line Enterprises, 302 NLRB 373, 374 (1991), that an exception to the duty to bargain exists where the employer can demonstrate that economic exigencies compelled prompt action and such exception is limited to extraordinary events that are an unforeseen occurrence having a major economic impact requiring the employer to take immediate action.

Although the determination is fact specific, the Board held that employers did not have a duty to bargain with respect to their unilateral decisions to layoff employees during certain public emergencies, such as a mandatory city evacuation in a hurricane or in the aftermath of 9/11. Similarly, the Board found exceptions to the duty to bargain with respect to emergencies unique to the employer where the situation was unforeseen and had a major economic effect, such as an employer’s credit line being discontinued. However, in several cases the Board found that an employer had a duty to bargain where the decision was not based on an unforeseen occurrence, including chronic problems of which the employer was aware.

Regardless of the type of emergency and whether the decision constitutes an exception to the duty to bargain under the NLRA, the employer is still required to bargain over the effects of its decision.

Takeaway for Employers

Employers with unionized workforces that are faced with the prospect of taking unilateral actions in response to the COVID-19 pandemic, such actions that are normally subject to bargaining, should carefully review whether these actions are the result of economic exigencies that are unforeseen and need to be implemented immediately. If employers take such actions without consulting with the union, employers should immediately notify the union of the actions taken and offer to bargain with the union regarding the effects of these actions.

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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 27, 2020, President Donald Trump signed into law the Coronavirus Aid, Relief and Economic Security Act (“CARES” or the “Act”) providing financial resources for individuals, families and small businesses affected by COVID-19, as well as making several key policy changes impacting health care providers. This alert highlights the main provisions of CARES, including the topics of cash assistance to individuals, expansion of unemployment benefits, funds available to businesses adversely affected by COVID-19, healthcare relief and grants and tax credits available under the Act.

Cash Assistance to Individuals

The Act provides funding for $1,200 tax rebates to individuals, with additional $500 payments per qualifying child. The rebate begins phasing out when incomes exceed $75,000 (or $150,000 for joint filers).

  • Eligible individuals receive either a cash disbursement or a refundable tax credit in the amount of:
    • $1,200 for individuals; or
    • $2,400 for individuals filing jointly; plus
    • $500 for each qualifying child.
  • The cash disbursement or refundable tax credit is reduced by 5 percent of any income over:
    • $75,000 for individuals (phases out at $99,000);
    • $150,000 for individuals filing jointly (phases out at $198,000); and
    • $112,500 for individuals filing as head of household (phases out at $136,500).
  • Income is based off of 2019 tax returns.
    • For individuals who have not yet filed a tax return for 2019, tax returns for 2018 will apply.
    • For individuals who have not yet filed a tax return for 2018, information provided in a 2019 Social Security Benefit Statement or a 2019 Social Security Equivalent Benefit Statement may be used.
    • Individuals who have not yet filed a tax return for 2019 or 2018, and do not have a 2019 Social Security Benefit Statement or 2019 Social Security Equivalent Benefit Statement, will receive a refundable tax credit against their 2020 income tax instead of a cash disbursement.

**Note: individuals should file 2019 taxes in order to qualify for a cash disbursement.

  • To be eligible, individuals must be citizens or permanent residents, and cannot be classified as dependents.
  • Cash disbursements will be made as soon as possible and no later than December 31, 2020.
  • Payments may be disbursed electronically to any account the individual authorized for receipt of tax refunds on or after January 1, 2018.
  • Notice of payment will be sent to the eligible taxpayer’s last known address no later than 15 days after payment.
  • A valid social security number must be included on tax returns.

Unemployment Benefits Expansion

The unemployment insurance provisions of the Act known as the Relief for Workers Affected by Coronavirus Act, among other things, increases the weekly maximum benefit by $600 per week until July 31, 2020, and increases the duration of payments to 39 weeks. The Act also extends unemployment benefits to previously ineligible workers including self-employed workers, workers seeking part-time work, workers who cannot reach their workplace as a result of COVID-19, as well as those who do not have sufficient work history to otherwise qualify for unemployment benefits:

Federal Pandemic Unemployment Compensation

The Act provides for an emergency increase in unemployment compensation benefits for individuals in any State that enters into an agreement with the Secretary of Labor.

Amount of Benefit. Covered individuals will receive weekly:

  • The amount of unemployment compensation determined by State law (NY caps at $504 per week); plus
  • An additional amount of $600, referred to as the “Federal Pandemic Unemployment Compensation.”
  • This additional benefit expires on or before July 31, 2020.

Federal Pandemic Emergency Unemployment Compensation

The Act also extends these benefits to individuals who are no longer eligible because they have exhausted their regular unemployment compensation and would not qualify for a particular week.

Eligibility

  • Must have exhausted all rights to regular compensation under State law or Federal law in the benefit year.
  • Must have no rights to regular compensation during a week under State unemployment compensation law or other Federal law.
  • Must not be receiving compensation during a week under the unemployment compensation law of Canada.
  • Must be able and available to work and is actively seeking work.

Amount of Benefit. Covered individuals will receive weekly:

  • The amount of regular unemployment compensation payable to the individual during the benefit year under State law for a week of total unemployment; plus
  • The amount of Federal Pandemic Unemployment Compensation (or $600 per week)

Expands Coverage

  • Covered individuals under the Act include those who are not eligible for regular compensation or extended benefits under State law, Federal law or pandemic emergency UI under section 2107 (or has exhausted all such benefits), and provide self-certification that they otherwise able and are available for work, except that the individual is unemployed, partially unemployed, or unavailable to work because:
  • The individual has been diagnosed with COVID-19, is experiencing symptoms and is seeking a medical diagnosis.
  • A member of the individual’s household has been diagnosed with COVID-19.
  • The individual is caring for a family member or a member of the household who has been diagnosed with COVID-19.
  • The individual is the primary caregiver to a child or other person in the household who is unable to attend school or another facility that is closed as a direct result of COVID-19 concerns.
  • The individual is unable to go to the workplace because of a quarantine imposed due to COVID-19 concerns.
  • The individual is unable to go to the workplace on advice of a health care provider to self-quarantine due to COVID-19 concerns.
  • The individual was scheduled to start employment but does not have a job or cannot get to the job because of COVID-19.
  • The individual has become the breadwinner (or provides major support) because the head of household as died due to COVID-19.
  • The individual had to quit his/her job because of COVID-19.
  • The individual’s workplace is closed because of COVID-19.
  • The individual meets additional criteria established by the Secretary for UI assistance.
  • Covered individuals also include those not eligible for regular compensation or extended benefits under State, Federal or pandemic emergency UI, and:
    • Is self-employed.
    • Is seeking part-time employment.
    • Does not have sufficient work history.
    • Otherwise would not qualify for regular UI or extended benefits under State or Federal law or pandemic emergency UI under section 2107.
    • Individuals Not Covered:
    • Individuals who can telework, with pay; or
    • Individuals receiving paid sick leave or other paid leave benefits, regardless of whether they are otherwise eligible.
    • Actively Seeking Work Defined

To be eligible for benefits, individuals must be actively seeking work, which includes the following:

  • registered for employment services
  • has engaged in an active search for employment
  • has maintained a record of such work search
  • when requested, has provided work search records to the State agency.However, the Act provides that States must give individuals flexibility in meeting the requirements due to inability to search for work because of illness, quarantine or other movement restrictions.

Extends Duration of Benefits

  • Covered individuals may receive unemployment benefit assistance while unemployed, partially employed, or unable to work for the weeks of such unemployment, and while not entitled to any other unemployment compensation, as follows:
  • Total number of weeks of assistance is increased to 39 weeks, which includes any weeks a covered individual received regular State benefits.
  • Waiver of any State waiting period.
  • Beginning on or after January 27, 2020, and ending on or before December 31, 2020.

Application to Other Compensation

  • The additional $600 benefit received each week from the expanded coverage would count as income and may disqualify individuals for eligibility for other means-tested programs, except it is disregarded for Medicaid and the Children’s Health Insurance Program (CHIP).

Corporate Funding/SBA Loans

Another core piece of the Act is the provision of $349 billion for small businesses through federally backed loans under a modified and expanded Small Business Administration (SBA) 7(a) loan guaranty program called the Paycheck Protection Program. The program has been designed to make funds available to qualifying businesses quickly through approved banks and nonbank lenders, such as credit unions.

  • Under the Act, qualifying businesses include:
    • Businesses with up to 500 employees or which meet the applicable size standard for the industry as provided by SBA’s existing regulations.
    • Businesses in the accommodation and food services industries with more than one physical location but no more than 500 employees at each location.
    • Nonprofit organizations.
    • Eligible independent contractors and sole proprietors with supporting 1099 or payroll tax filing information.
  • Loans will be available through SBA and Treasury approved banks, credit unions, and some nonbank lenders.
  • The time period for the “covered loan” is the period from February 15, 2020, ending June 30, 2020. The loan must be applied for prior to June 30, 2020.
  • Borrowers can borrower 2.5 times their monthly payroll expenses, up to $10 million with an interest rate not to exceed 4%, deferred payments and a maximum maturity of 10 years.
  • Applicable uses for the loan proceeds include: (1) qualified payroll costs; (2) rent; (3) utilities; and (4) interest on mortgage and other debt obligations. However, employees earning in excess of $100,000.00 are excluded.
  • Loan forgiveness is available for funds used to pay 8 weeks of payroll and other qualified expenses. The amount of the forgiveness of the loan will be excluded from gross income to the employer.
  • Loan forgiveness may be reduced by the number of full-time employees who are laid off during the “covered period,” as compared to the number of full-time employees employed from January 1, 2020 to February 29, 2020. The amount of forgiveness may also be reduced by the amount of reductions in total salary or wages of the employees during the covered period as compared to the most recent full quarter during which the employee was employed prior to the covered period.
  • Businesses receiving loans must use the money within two months to obtain forgiveness. Notably, the employer cannot pay any employee more than $10,000 in those two months, or the portion of the forgiven amount may be reduced.
  • An employer may also receive forgiveness for additional wages paid to tipped employees during the covered period.
  • If a company laid off and shut down its operations due to the crisis, it may still be eligible for the SBA loans on the terms above, though not forgiveness of a loan since employees were not retained.

Employee Retention Credit

In addition to providing SBA loans, the Act also creates an employee retention credit equal to 50% of up to $10,000 in qualified wages (including properly allocable qualified health plan expenses) paid per employee during the COVID-19 crisis by eligible employers. Eligible employers are those employers whose: (1) operations were fully or partially suspended due to shut-down orders related to COVID-19, or (2) gross receipts declined by more than 50 percent when compared to the same quarter in the prior year.

  • Qualified wages paid by eligible employers with greater than 100 full-time employees are wages paid to employees when they are not providing services for the period that the employer qualifies as an eligible employer, as defined above.
  • Qualified wages paid by eligible employers with 100 or fewer full-time employees are the wages paid to all employees, whether the employee is providing services or not, for the period that the employer qualifies as an eligible employer, as defined above.
  • Tax credits are not available for companies who obtain SBA loans under the Act.

Mid-Sized Business (500-10,000 Employees)

For business that have a wide scale impact on the economy, the Act also offers financial relief through loans with favorable interest rates for “eligible business” with 500-10,000 employees. The Act specifies certain industries such as the airline industry as well as certain financial institution as “eligible business,” it is unclear what other business may qualify for financial assistance. Applications will be available within ten (10) days of the Act. For employers, relevant conditions of the loans include:

  • Either retaining at least 90% of its workforce at full compensation and benefits until September 30, 2020, or intends to restore 90% percent of its workforce as it existed as of February 1, 2020 by May 31, 2020;
  • Barring employers from abrogating any existing any collective bargaining agreements during the term of the loan and 2 years after completing repayment; and
  • Remaining neutral in any union organizing effort for the term of the loan.

Employer Neutrality

The Act does not provide specifics on what constitutes “neutrality” or addresses other similar or overlapping topics such as card check, waiver of elections, and forms of assistance to unions such as providing names and contact information of employees. It is likely that deference will be afforded to the NLRB’s interpretations where “neutral” employer applies to waiver of employer free speech – not to procedural matters such card check, secret ballot elections, or other forms of union assistance. Notably, prior to the COVID-19 outbreak, the General Counsel of the NLRB challenged the parameters of neutrality agreements to prohibit forms of union assistance. For now, “neutrality,” at minimum, bars employers from campaigning against a union or favoring one union over another during an organizing campaign.

Delay of Payment of Employer Payroll Taxes

The Act also permits employers (and self-employed individuals) to defer payment of the employer’s share of the Federal Social Security tax (6.2%) on employee’s wages paid, as of the date of enactment through December 31, 2020. This provision requires that the deferred tax be paid over the following two years, with half of the amount required to be paid by December 31, 2021, and the other half by December 31, 2022.

Health Care Relief

The Act also increases funding for the Public Health and Social Services Emergency Fund, by attributing:

  • $75 billion in grants and other mechanisms to reimburse eligible health care providers for health care-related expenses or lost revenues not otherwise reimbursed that are directly attributable to COVID-19. Eligible providers are defined as public entities, Medicare- or Medicaid-enrolled suppliers and providers, and other for-profit and non-profit entities as specified by the Health and Human Services (HHS) Secretary.
  • $12.7 billion to fund activities such as developing vaccines, and purchasing vaccines, diagnostics and medical surge capacity. The Act would fund workforce modernization, telehealth access and other preparedness and response activities. At least $500 million of these funds must be made available to entities that are part of the Hospital Preparedness Program, with $200 million of these funds being made available within 30 days of enactment. In addition, at least $1.7 billion of these funds must be used to purchase products for the Strategic National Stockpile.

Other notable provisions of the Act applying to the healthcare industry include:

  • Reauthorizing Health Resources and Service Administration grants related to telehealth, rural health, food assistance and increased access to health services.
  • Providing “Good Samaritan” liability protections for volunteer health care professionals.
  • Establishing a Ready Reserve Corps to help ensure the supply of doctors and nurses trained to respond to public health emergencies.
  • Requires health insurance plans to provide coverage of a COVID-19 vaccine, when developed, at no cost to the patient.

The CARES Act also includes a number of Medicare and Medicaid provisions intended to increase support to hospitals and health care workers, as well as increase health care access for beneficiaries during the public health emergency. The Act:

  • Increases payments to hospitals by temporarily lifting the 2% Medicare sequester.
  • Increases Medicare payments for treating COVID-19 patients by 20%.
  • Expands the number of Medicare providers who can provide telehealth services and waives numerous face-to-face requirements between providers and patients.
  • Requires that Part D plans provide a 90-day supply of prescription medication when requested.

The Act reauthorizes and provides funding for a number of public health programs through November 30, 2020, including funding for:

  • Community Health Centers.
  • The National Health Services Corps.
  • The Temporary Assistance for Needy Families Program.
  • Programs that award grants to fund HIV/STD prevention, teen pregnancy prevention, and youth development.

The Act also extends Medicaid programs that help patients transition from nursing home settings to home settings. The Act also delays cuts to Medicaid Disproportionate Share Hospital (DSH) payments through November 30, 2020.

Finally, the Act makes significant changes to the regulation of over-the-counter (OTC) drugs, notably allowing the Federal Drug Administration to approve changes to OTC drugs administratively rather than through full notice and comment rulemaking, by creating an 18-month exclusivity period as an incentive for companies to bring innovative OTC products to market.

Amendments To The FFCRA

The Act also contains several technical amendments to the Families First Coronavirus Response Act (“FFCRA”):

  • Limitations on Employer Paid Sick Leave Obligations: An employer’s requirement to provide paid leave with respect to any individual employee expires upon the earlier of: (i) the time when the employer has paid for sick leave for an equivalent of 80 hours of work; or (ii) upon that employee’s return to work after taking paid leave. (e. Emergency Paid Sick Leave must be used all at once, not intermittently).
  • Paid Leave for Rehired Employees: Recently re-hired employees who were laid off not earlier than March 1, 2020 are now eligible for leave under the Emergency Family and Medical Leave Expansion Act (“EFMLEA”).

Secretary of Labor Exclusion for Small Businesses: The Secretary of Labor may exempt employers of fewer than 50 employees from providing emergency paid sick leave to employees caring for an individual who is quarantined or self-quarantined or a child whose school or daycare closed or other caregiver has become unavailable due to coronavirus, but does not extend this waiver authority to other uses of emergency paid sick 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

On March 18, 2020, the Families First Coronavirus Response Act (“FFCRA”) was signed into law, requiring certain employers to provide paid sick leave and paid family leave for eligible employees affected by the Coronavirus of COVID-19. See Client Alert – Responding to the Coronavirus – Paid Sick Leave. The Act provides that the Secretary of Labor will issue guidance to assist employers in implementing the provision of the Act.

On March 24, 2020, the U.S. Department of Labor’s (“DOL”) Wage and Hour Division (“WHD”) published guidance for employees and employers to take advantage of the protections and relief provided by the FFRCA. The Department of Labor’s WHD administers and enforces the new law’s paid leave requirements. The guidance is provided in a Fact Sheet for Employees, a Fact Sheet for Employers, and Question and Answer document, addressing critical questions concerning the leave provisions in the Act.

On March 25, 2020, the WHD published further guidance in the form of additional Fact Sheets and Questions and Answer documents, as well as workplace posters for employers to provide to employees. Additional information will likely be forthcoming from the WHD in the next few days. The law is to take effect on April 1, 2020, rather than April 2nd, and will apply through December 31, 2020.

As used herein, “paid sick leave” means paid leave under the Emergency Paid Sick Leave Act, and “expanded family and medical leave” means paid leave under the Emergency Family and Medical Leave Expansion Act.

 

FACT SHEET FOR EMPLOYEES AND EMPLOYERS

The Fact Sheet for Employees and the Fact Sheet for Employers cover the same general information. Among other things, they provide an overview of the leave requirements under the FFCRA. Covered employers are required to provide their employees with paid sick leave and expanded family and medical leave for certain qualified reasons related to COVID-19, including the following:

  • Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay, where the employee is unable to work because the employee is quarantined (pursuant to an order of the federal, state, local government or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
  • Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to an order of the federal, state, local government or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable due to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
  • Up to 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay if an employee is 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 (for employees who have been employed for at least 30 days prior to the leave).

However, employers of health care providers or emergency responders may elect to exclude such employees from this leave.

The Fact Sheets also provide the following guidance on application of the leave requirements.

Covered Employers

The FFCRA applies to certain public and private employers with fewer than 500 employees.

Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or unavailability of childcare if it would jeopardize the viability of the business as a going concern. Employers with fewer than 50 employees may also seek an exemption from other provisions of the Act, and the DOL is expected to issue guidelines with that regard to those employers in April 2020.

Covered Employees

All employees of covered employers are eligible for two (2) weeks of paid sick time for specified reasons related to COVID-19.

Employees employed for at least 30 days are eligible for up to an additional 10 weeks of paid family leave to care for a child under certain circumstances related to COVID-19.

Special rules apply for health care providers and emergency responders.

Employees should provide notice of leave as is practicable. After the first workday of paid sick time, an employer may require employees to follow reasonable notice procedures to continue receiving paid sick time.

Qualifying Reasons for Leave

The Fact Sheets provide that an employee qualifies for sick leave if the employee is unable to work (or telework) due to a need for leave 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 related to COVID-19;
  3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. is caring for an individual subject to an order described in (1) or self-quarantine in (2);
  5. is caring for a child whose school or place of care is closed because of COVID-19;
  6. is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

The employee also qualifies for expanded family and medical leave if the employee is caring for a child whose school or place of care is closed because of COVID-19.

Duration of Leave

For reasons (1)-(4) and (6), full time employees are eligible for up to 80 hours of leave, and part-time employee are eligible for the number of hours of leave that the employee works on average over a two-week period.

For reason (5), full-time employees are eligible for up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave) at 40 hours a week, and part-time employees are eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Calculation of Pay

For reasons (1)-(3), employees taking leave shall be paid at the higher of either their regular rate or the applicable minimum wage, up to $511 per day and $5,110 in the aggregate (over a 2-week period).

For reasons (4) or (6), employees taking leave shall be paid at the higher of either 2/3 their regular rate or 2/3 the applicable minimum wage, up to $200 per day and $2,000 in the aggregate (over a 2-week period).

For reason (5), employees taking leave shall be paid at the higher of either 2/3 their regular rate or 2/3 the applicable minimum wage, up to $200 per day and $12,000 in the aggregate (over a 12-week period – two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave). Employees may choose to substitute the first two weeks with any accrued vacation leave personal leave, or medical or sick leave under their employer’s policy.

Leave under this Act does not carry over to the following year, and employees are not entitled to reimbursement for unused leave upon termination of employment.

Tax Credits

Covered employers qualify for dollar-for-dollar reimbursement through tax credits for qualifying wages paid under the FFCRA, up to the appropriate per diem and aggregate payment caps.

Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage. See Client Alert – Treasury, IRS and Labor Announce Plan to Implement Coronavirus-Related Paid Leave for Workers and Tax Credits for Small and Midsize Businesses.

Employer Notices

Covered employers must post a notice of FFCRA requirements in a conspicuous place on its premises. The DOL has now provided two model notices on Employee Rights, one for non-federal employees and a second for federal employees.

Prohibitions

Employers may not discharge, discipline, or otherwise discriminate against any employee for taking leave under the FFCRA or for filing a complaint or instituting a proceeding under FFCRA.

Penalties and Enforcement

Employers who violate the first two weeks of expanded leave provisions or prohibitions of the FFCRA will be subject to penalties and enforcement as described in the Fair Labor Standards Act (“FLSA”), 29 U.S.C. 216, 217.

Employers who violate provisions providing for an additional 10 weeks of expanded family and medical leave to care for a child whose school or place of care is closed are subject to the enforcement provisions of the Family and Medical Leave Act (“FMLA”).

The DOL will observe a temporary 30-day period of non-enforcement after the Act takes effect, or until April 17, 2020, so long as the employer acts reasonably and in good faith to comply with the Act. “Good faith” exists when:

  • violations are remedies and the employee is made whole as soon as practicable by the employer,
  • the violations are not willful, and
  • the employer provides a written commitment to the DOL to comply in the future

 

 

QUESTION AND ANSWER SHEETS

The DOL also provided a Question and Answer sheet, providing guidance on the following topics. The DOL will also be issuing regulations to implement the provisions in the Act.

  1. Effective Date of the FFCRA
    The paid leave provisions under the FFCRA are effective April 1, 2020, and apply to leave taken between April 1, 2020 and December 31, 2020.
  2. Calculation of Size of Employer
    In making the determination as to whether a business is under the 500-employee threshold, employers should include employees on leave, temporary employees who are jointly employed employees (regardless of whether they are maintained only on one of the employer’s payroll), and day laborers supplied by a temporary agency (if there is a continuing employment relationship).Workers, who are independent contractors under the FLSA, rather than employees, are not considered employees for purposes of the 500-employee threshold.Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold. However, where a corporation has an ownership interest in another corporation, the two corporations are separate employers, unless they are joint employers of certain employees under the FLSA. If two entities are joint employers, all of their common employees must be counted in determining coverage under the FFCRA.In general, two or more entities are separate employers unless they meet the integrated employer test under the FMLA. If two entities are an integrated employer under the FMLA, then employees of all entities making up the integral employer will be counted in determining coverage under the FFCRA.
  3. Private Sector Employers
    Private sector employers are only required to comply with the Acts if they have fewer than 500 employees.
  4. Small Businesses Exemption
    Employers with fewer than 50 employees can apply for an exemption under the Act if providing child-care-related paid sick leave and expanded family and medical leave would jeopardize the viability of their business as a going concern.To take advantage of the exemption, employers should document why their business meets the criteria, which will be addressed by the DOL in more detail in forthcoming regulations. However, employers should not send any materials to the DOL when seeking the small business exemption.
  5. Calculation of Hours Worked by Part-Time Employees
    Part-time employees are entitled to leave for the average number of hours worked in a two-week period. This calculation is based on the number of hours the employee is normally scheduled to work.If the normal hours are unknown or varies, a six-month average may be used. The part-time employee may take paid sick leave for this number of hours per day for the two-week period, and then expanded family and medical leave for the same number of hours per day up to ten weeks after that.If the employee has not been employed for at least six months, the number of hours that the employee agreed to work upon hiring may be used. If no such agreement, the appropriate number of hours may be calculated based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.
  6. Overtime Hours, Overtime Pay
    When calculating pay due to employees for expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act, if the employee would have normally been scheduled to work more than 40 hours in a week, overtime hours must be included, subject to the daily and aggregate cap. However, premium pay is not required for hours worked over 40 per week.When calculating pay due to employees for paid sick leave under the Emergency Paid Sick Leave Act, the Act only requires payment for up to 80 hours over a two-week period. So if an employee is scheduled to work 50 hours per week, that employee may take 50 hours of paid sick leave in the first week, and 30 hours of paid sick leave in the second week, for a total of 80 hours in two weeks, subject to the daily and aggregate cap. Again, premium pay is not required for hours worked over 40 per week.
  7. Calculation of Rate of Pay
    The rate of pay for an employee taking paid sick leave or expanded family and medical leave under the FFCR depends on the employee’s normal schedule the reason for taking leave.Employees who are taking paid sick leave because they are unable to work because they (1) are subject to a federal, state or local order of quarantine or isolation related to COVID-19; (2) have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) are experiencing symptoms of COVID-19 and are seeking medical diagnosis, will receive:

    • the greater of their regular hourly rate of pay, or the applicable minimum wage (federal, state or local)
    • up to a maximum of $511 per day, or $5,110 total over the entire paid sick leave period.

Employees who are taking paid sick leave because they are unable to work because they are (1) caring for an individual who is subject to a federal, state or local order of quarantine or isolation related to COVID-19 or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for a child whose school or place of care is closed due to COVID-19; or (3) experiencing any other substantially-similar conditions that may arise, as specified by the Secretary of Health and Human Services, will receive:

    • the greater of 2/3 of their regular hourly rate of pay, or 2/3 of the applicable minimum wage (federal, state or local)
    • up to a maximum of $200 per day, or $2,000 total over the entire paid sick leave period.

Employees taking expanded family and medical leave:

    • for the first 10 days, they may take paid sick leave, or substitute any accrued vacation leave, personal leave or medical or sick leave under their employer’s policy
    • for the following 10 weeks, they will be paid for leave at the greater of 2/3 of their regular hourly rate of pay, or 2/3 of the applicable minimum wage (federal, state or local)
    • up to a maximum of $200 per day, or $12,000 for the twelve weeks that include both paid sick leave and expanded family and medical leave when the employee is on leave to care for a child whose school or place of care is closed due to COVID-19.
  1. Regular Rate of Pay
    For purposes of FFCRA, the regular rate of pay used to calculate paid leave is the average of the employee’s regular rate (as determined by section 7(e) of the FLSA) over a period of up to six months prior to the date on which leave is taken.If the employee has not worked for the employer for six months, the regular rate is the average of the regular rate of pay for each week worked for the employer.If paid with omissions, tips or piece rates, they should be incorporated into the calculation of regular rate.The regular rate can also be computed for each employee by adding all compensation that is part of the regular rate over the applicable period above and dividing it by the sum of all hours actually worked in the same period.
  2. No Stacking of Paid Sick Leaves
    Employees may not use 80 hours of paid sick leave for one qualifying reason, and then another amount for another qualifying reason under the Emergency Paid Sick Leave Act. Employees may only take up to two weeks of paid sick leave, capped at 80 hours total for full-time employees, or the number of hours worked over a two-week period for part-time employees, for any combination of qualifying reasons.
  3. Stacking of Paid Sick Leave and Expanded Family and Medical Leave
    Employees may take both paid sick leave and expanded family and medical leave to care for a child whose school or place of care is closed for COVID-19 reasons, for a total of twelve (12) weeks of paid leave.The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave, which covers the first ten workdays of expanded family and medical leave (which is otherwise unpaid unless accrued vacation, personal, medical or sick leave under the employer’s policy is used).Thereafter, the employee can receive another ten weeks of leave under the expanded family and medial leave at a rate of 2/3 the regular rate of pay for the hours the employee would have been scheduled to work in those ten weeks. However, the additional ten weeks of leave can only be used care for a child whose school or place of care is closed for COVID-19 reasons.
  4. Paid Sick Leave Taken Prior to the FFCRA
    If an employee was provided paid sick leave for a qualifying reason prior to the effective date of FFCRA, the employee is entitled to the full amount of paid sick leave under the Emergency Paid Sick Leave Act beginning on April 1, 2020.
  5. All Leave Under the FMLA Leave Is Not Paid
    Only family leave under the Emergency Family and Medical Leave Expansion Act is paid, after the first 10 days of leave.
  6. Is Paid Leave Under the FFCRA Retroactive
    No, the paid sick leave and expanded family and medical leave requirements under the FFCRA are not retroactive.
  7. Calculation of 30-Day Eligibility Period for Employees
    Employees are considered to have been employed by their employer for at least 30 calendar days if the employer had the employee on its payroll for the 30 calendar days immediately prior to the day leave would begin.For an employee who has been working as a temporary employee, and is subsequently hired on a full-time basis, the days previously worked as a temporary employee may be counted towards the 30-day eligibility period.
  8. Employer’s Obligation to Employees Under a Government-Imposed Quarantine
    WHD encourages employers to be accommodating and flexible with workers impacted by government-imposed quarantines. Employers may offer alternative work arrangements, such as teleworking, and additional paid time off to such employees.
  9. Employers Can Require Employees to Perform Work Outside the Job Description
    The FLSA does not limit the types of work employees over the age of 18 may be required to perform, even if outside the employee’s job description. Thus, workers may be assigned to work outside of their job description during a pandemic or public health emergency. Employers should however consult their collective bargaining agreements with unions.
  10. Employers Can Send Employees Home or Require Them to Take Sick Leave
    Employees can exclude employees from the workplace, but cannot do so on a discriminatory basis (i.e., age, disability, race, sex, etc.) However, an employer may exclude from the workplace an employee with a disability if the employer:
    • obtains objective evidence that the employee poses a direct threat (i.e., significant risk of substantial harm); and
    • determines that there is no available reasonable accommodation to eliminate the direct threat.

During a pandemic, employers may require a doctor’s note, a medical examination, or a timer period during which the employee has been symptom free before it allows the employee to return to work, if the employer has reasonable belief, based on objective evidence, that the employee’s present medical condition would:

    • impair his ability to perform essential job functions with or without reasonable accommodation, or
    • pose a direct threat (i.e., significant risk of substantial harm that cannot be reduced or eliminated by reasonable accommodation) to safety in the workplace
  1. Telework
    Employers may require employees to telework as an infection-control strategy. Telework may also be a reasonable accommodation.However, employers may not single out employees to either telework or report to the workplace on a basis that is discriminatory.Employers do not need to pay non-exempt employees their same hourly rate if they work from home, unless required to do so by union or employment contract, or if teleworking is provided as a reasonable accommodation. However, employees must be paid the minimum wage and they must be paid for all hours worked, including overtime hours at 1.5 times the hourly rate.Employers who are required to keep records of work-related injuries and illnesses will continue to be responsible for keeping records for injuries and illnesses occurring in a home office.In the event an employer bars employees from working from the workplace and requires them to work from home, for those who are unable to work from home, the employer is not required to pay them. The FLSA only requires employees to be paid for time actually worked. Salaried exempt employees only must receive their full salary in any week in which they perform any work.When not all employees can work from home, WHD encourages employers to consider additional options to promote social distancing, such as staggered work shifts.
  2. Additional FLSA Questions
    Business with a shortage of workers and that are looking for “volunteers to help out should be aware of FLSA requirements. In general, covered, nonexempt workers for private, for-profit employers must be paid at least the minimum wage and cannot volunteer their services. Employers should check with DOL for rules governing volunteering in the public and private, non-profit sector.Individuals who volunteer their services to a public agency in an emergency capacity are not considered employees due compensation under the FLSA if they:
    • perform such services for civic, charitable or humanitarian reasons without expectation of compensation (although expenses, benefits and nominal fees may be paid);
    • offer their services freely and without coercion; and
    • are not otherwise employed by the same pubic agency to perform the same services for which they are volunteering.Similarly, individuals who volunteer their services to private not-for-profit organizations in an emergency capacity for civic, charitable or humanitarian reasons without expectation of compensation are not considered employees due compensation under the FLSA. However, employees of such organizations may not volunteer to perform on an uncompensated basis the same services they are employed to perform.

Final Paycheck. Employers must provide workers who have been laid off with their final paycheck by the regular payday for the pay period worked.

Partial Work. If an employee worked a partial week but then the employer’s business closed, under the FLSA that employee only needs to be paid for hours actually worked – not hours the employee would otherwise have worked.

Forced Vacations. The FLSA does not require employers to provide vacation time. Where an employer offers a bona fide benefits plan or vacation time to employees, there is no prohibition on an employer requiring that such accrued leave or vacation time be taken on a specific day.

Exempt Employees. Generally exempt employees must receive their full salary in any week in which they perform any work.

  1. FMLA Leave

Employees who are out of work due to a serious health condition, or to care for a family member with a serious health condition, may be entitled to unpaid leave under the FMLA if they:

    • have worked for their employer for at least 12 months;
    • have at least 1,250 hours of service over the previous 12 months; and
    • work at a location where at least 50 employees are employed within 75 miles

Eligible employees are entitled to up to 12 weeks of unpaid, job-protected leave in a 12-month period.

  1. Employee’s Refusal to Work at the Workplace
    Leave taken by an employee for the purpose of avoiding exposure to the Coronavirus would not be protected under the FMLA. Employers should consider flexible leave policies for their employees in these circumstances.
  2. Can Employers Change Paid Sick Leave Policy
    Employers may change their sick leave policy if a number of employees are out and they cannot afford to pay, provided it does so in a manner that does not discriminate, and in compliance with any collective bargaining agreement. Otherwise, while employees may have a contractual right to any accrued sick leave, they do not have a right to future leave.
  3. Laying Off of Employees
    If an employer temporarily closes its place of business because of COVID-19 related reasons, it may choose to lay off some but not all employees, so long as it does not do so on a discriminatory basis.Employers should consider whether notice requirements under the Worker Adjustment and Retraining Notification (WARN) Act would be triggered.
  4. Posting of Notices of FFCRA Requirements

Each covered employer must post a notice of the FFCRA requirements in a conspicuous place on its premises. If the employer has a main office and several other worksites, the notice only needs to be posted in the main location. An employer with employees who are teleworking may satisfy the notice requirement by emailing or direct mailing the notice to current employees, or posting it on the employee information internal or external website.

Notice only need be provided to current employees, including new hires. It does not have to be shared with laid-off workers or prospective employees.

The notice does not need to be posted in multiple languages, although the DOL is working to translate it into other languages.

All employers with fewer than 500 employees must post the notice.

 

IMPACT ON NEW YORK


Qualify Reason for Leave

The FFCRA is broader in terms of qualifying reasons for taking leave, as it includes not only employees who are ordered quarantined or isolated by a governmental entity, but also on advice by a health care provider.

The New York emergency paid family and sick leave law only 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. Thus, more employees with qualify for leave under the FFCRA.

Covered Employers

The FFCRA excludes from coverage employers with greater than 500 employees. Employers with fewer than 50 employees can also seek an exemption if the requirements would jeopardize the viability of their business as a going concern.

The New York law applies to all employers regardless of size. It only impacts the amount of leave that is required to be provided. Employers with 100 or more employees are required to provide at least 14 days of paid sick leave, while employers with 11 to 99 employees and employers with 10 or fewer employees (with net income more than $1 million in the previous tax year) must provide at least 5 days of paid sick leave. Employers with 10 or fewer employees (with net income less than $1 million in the previous tax year) are only required to provide unpaid sick leave, along with paid family leave and disability benefits.

Covered Employees        

The FFCRA excludes from coverage for expanded family and medical leave employees who have not been employed by the employer for30 days prior to the need to take leave. The New York law applies immediately, regardless of length of employment.

Under the FFCRA, employers may exclude from coverage health care providers or emergency responders.

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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 our previous alert on Responding to the Coronavirus – Paid Sick Leave, we advised that on March 18, 2020, President Donald Trump signed into law the Families First Coronavirus Response Act (“FFCRA”), requiring employers to provide paid sick leave and paid family leave for eligible employees affected by the Coronavirus of COVID-19. These provisions were to take effect 15 days after the date of enactment, or April 2, 2020. The Act also allows for employers to a payroll tax credit for required paid sick leave and family leave, in order to enable employers to keep workers on their payrolls.

On March 20, 2020, the U.S. Treasury Department, Internal Revenue Services (“IRS”) and the U.S. Department of Labor announced a plan to implement the Act so that eligible employers can begin to immediately take advantage of two new refundable payroll tax credits to reimburse them, dollar-for-dollar, for the cost of providing Coronavirus-related leave to their employees. Eligible employers are businesses and tax-exempt organizations with fewer than 500 employees that are required to provide emergency paid sick leave and family leave under the Act. Eligible employers will be able to claim these credits based on qualifying leave provided between the effective date and December 31, 2020. Equivalent credits are also available to self-employed individuals based on similar circumstances.

Complete Reimbursement for Employers

Paid Sick Leave Credit

The Act provides that employees who are unable to work due to COVID-19 because of an order to quarantine or isolate, self-quarantine, or to seek medical diagnosis, may receive up to 80 hours of paid sick leave at 100% of the employee’s pay, up to $511 per day and $5,110 in the aggregate, for a total of ten (10) days.

Employees who are unable to work because of COVID-19 to care for another individual who is quarantined or isolated, or to care for a child whose school or child care facility as closed, or who is experiencing similar conditions as specified by the U.S. Department of Health and Human Services, may receive up to 80 hours of paid sick leave at 2/3 of the employee’s pay, up to $200 per day and $2,000 in the aggregate, for a total of ten (10) days.

Employers are allowed a tax credit for each calendar quarter in an amount equal to 100 percent of the qualified sick leave wages paid. Employers are also entitled to an additional tax credit based on costs to maintain health insurance coverage for the eligible employee during the leave period.

Paid Family Leave Credit

In addition to the sick leave, employees who are unable to work to care for a child whose school has been closed or child care provider is unavailable due to COVID-19 may receive up to an additional ten weeks of expanded paid family leave at 2/3 the employee’s pay, up to $200 per day or $10,000 in the aggregate. Up to ten (10) weeks of qualifying leave can be counted towards the paid family leave credit.

Employers are allowed a tax credit for each calendar quarter in an amount equal to 100 percent of the qualified family leave wages paid. Employers are entitled to an additional tax credit based on costs to maintain health insurance coverage for the eligible employee during the leave period.

Prompt Funding For the Cost of Providing Leave

Typically, employers are required to withhold from their employees’ paychecks federal income taxes and the employees’ share of Social Security and Medicare Taxes. The employers are then required to deposit the payroll taxes with the IRS and file quarterly payroll tax returns.

Under guidance that will be released next week, eligible employers who pay qualified sick leave or family leave under the Act may retain an amount of the payroll taxes equal to the amount of qualifying sick leave and family leave paid, rather than deposit them with the IRS. The payroll taxes that may be retained include:

  • federal income taxes
  • employee’s share of Social Security and Medicare taxes
  • employer’s share of Social Security and Medicare taxes

Moreover, if there are insufficient payroll taxes to cover the cost of qualified sick leave and family leave paid, employers may file a request for an accelerated payment from the IRS. The IRS expects to process such requests in two weeks or less. The details of this expedited process will be available later in the week.

The IRS provides examples of funding scenarios including the following:

Example 1: If an eligible employer pays $5,000 in sick leave and is otherwise required to deposit $8,000 in payroll taxes, the employer could use up to $5,000 of the $8,000 payroll taxes to make qualified leave payments. The employer would be required to deposit the remaining $3,000 on its next regular deposit date.

Example 2: If an eligible employer pays $10,000 in sick leave and is otherwise required to deposit $8,000 in payroll taxes, the employer could use the entire $8,000 of payroll taxes in order to make qualifying leave payments, and file a request for an accelerated credit for the remaining $2,000.

Small Business Protection

The Act provides protection to certain small businesses with fewer than 50 employees. The Secretary of Labor may exclude such employers from the paid leave requirements, if the requirements would jeopardize the viability of the business as a going concern. The Department of Labor will provide emergency guidance and rulemaking to clearly articulate this standard.

Non-Enforcement Period for Good Faith Compliance

Finally, the Department of Labor announced that it will be issuing a temporary non-enforcement policy to allow time for employers to come into compliance with the Act. Under the policy, the Department of Labor will not bring an enforcement action against any employer for violations of the Act during the 30-day period, so long as the employer acted reasonably and in good faith to comply, but will instead focus on compliance assistance.

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

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.

 

*   *   *

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.

*   *   *

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.

*   *   *

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