Managing Through the Coronavirus Q&A

Below we have outlined the questions and answers from the webinar, “Managing Through the Coronavirus.”

Thank you for submitting your coronavirus questions! We have grouped them together by topic for easier reading.

Questions regarding “shelter in place” directives:

1. What does an essential employee need to go to/from work when there is a Shelter in Place such as CA?
2. NYS stated no one on the roads. What evidence can the employee present as evidence that they work in an essential business – Badge, business card?

Answer:

In most cases, there is no formal documentation required for presentation to commute to and from an essential business. Some state and federal agencies have produced template letters on their websites for workers to utilize. The most important thing is for employees to listen to any law enforcement officer stopping them for information. If the officer tells the employee to go home, the employee should go home and should have an employer number to call for assistance.

The likelihood of being stopped is low, unless there is a hot spot of COVID-19 transmission with low levels of stay at home compliance. You will need to watch the progression in your own communities. It certainly wouldn’t hurt to have a letter or badge showing the employee’s name, place of work, and industry.

How “essential business” is defined varies slightly state by state, but there is much alignment on what is “non-essential” – movie theaters, bowling alleys, museums, malls, etc. For more insights, see https://www.natlawreview.com/article/shelter-place-orders-are-you-essential-business.

Questions regarding applicability of FFCRA:

1. Which employers fall under the families first?
2. Does the FMLA cover EE caring for elderly parents quarantined outside of the EE home in this case? Or for adult children living in the EE home?
3. Are there any paid benefits for gig workers, 1099 folks?
4. Since our work sites are closed, would the paid FMLA not apply to us since the reason employees aren’t working is not due to childcare problems or illness?
5. My employer has 1300 employees, can you confirm the FFCRA does not apply?
6. What are the specifics for “private companies <500 employees” for the bill signed yesterday what is the definition of employee (full time, part time, temporary, students)?
7. Does the Families First Act apply to every employer?
8. Related to the FFCRA, will the pay funds be depleted from the employees bucket first or 100% employer paid?
9. Are nonprofit organizations of over 500 employees required to follow the FFRCA?
10. You mentioned that the date begins April 1, 2020. What about absences prior to that date?
11. How do employees request the pay sick leave and do we need to request supporting documentation?
12. If the childcare facility/service closes due to a known COVID-19 case on the premises, that is Sick leave, and if they just close as a precaution, that is FMLA?
13. Does the new law apply to all employers or just those with 500 or less employees?

Answer:

Families First Coronavirus Response Act (FFCRA)

FFCRA Applies to: Employers with 500 or fewer employees, and all government agencies. Employers with 50 or fewer employers may be exempt from compliance if it threatens the financial viability of the business.

Effective Dates: April 2- December 31, 2020

Eligibility: Employees with 30 or more calendar days of employment; the Fair Labor Standards Act definition of employee is leveraged for the purposes of the FFCRA which means that full time, part time, and temporary employees are covered. 1099 contractors are considered self-employed and are eligible to file for the refundable tax credits on their own accord.

Workplace Posters: We wanted to let you know that the Department of Labor just released the poster that employers need to post regarding employee rights. The Families First Coronavirus Response Act (FFCRA) requires certain public employers and private employers with fewer than 500 employees to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. Each covered employer must post in a conspicuous place on its premises a notice of FFCRA requirements. These provisions will apply from April 1, 2020, through December 31, 2020. Posters found here. 

Emergency Sick Pay

80 hours sick leave IN ADDITION to company policy – no carryover to 2021

•  Can use IF unable to work or telework for 6 reasons:
  • Government ordered isolation or quarantine
  • Health care provider recommends self-quarantine
  • EE experiencing symptoms and seeking diagnosis
  • Caring for someone in category 1 or 2
  • Caring for children because school or daycare closed/unavailable because of COVID
  • Any substantially similar situation
• Pay calculations:
  • Regular pay rate for reasons 1, 2, 3 (capped at $511/day)
  • 2/3 pay rate for reasons 4,5 (capped at $200/day)
  • Part Time or irregular schedules
    • Average # hrs worked over 2 weeks
• DOES NOT preempt state sick leave laws such as Connecticut’s Paid Sick Leave law

Emergency Family Leave Pay
Extends FMLA to employees with at least 30 days of tenure who are caring for child because of school or childcare closure/availability due to COVID emergency

• First 10 days unpaid, but can use sick or PTO days
• Then 2/3 pay for up to 10 weeks
  • PT or irregular schedule – 2/3 of average hours worked in past 6 months
• Capped at $200/day and $10k total

Employer Tax Credits
Employer Tax Credits – refundable credits for employer portion of OASDI – 6.2% employer portion of social security tax

• Sick Leave credit – Limited to 10 days per ee per quarter, wages up to $511/day
• Family leave credit – wages up to $200 per ee per day, $10k aggregate

Questions regarding employee decisions (self-quarantine, travel, unemployment insurance):

1. What if an employee just doesn’t feel safe and doesn’t want to come into work in fear of getting sick?
2. It’s Spring Break season. We have employees with previously scheduled travel to Hawaii, Mexico and Jamaica. We are cautioning them that if the go, they have a 2 week quarantine when they return. Is it your recommendation for employers not to discourage employees to travel personally?
3. If a part time employee decides to self-quarantine due to a family member at home being high risk due to an autoimmune disease, which roSute should be used? FMLA, family emergency act?
4. If someone has to take LWOP to take care of their kids, can they apply for unemployment? Does it matter if they are a state employee (RI)?

Answer:

Employee Choices: Employees choosing to work from home or not work due to opting for a self-quarantine, when there is no “shelter in place” order and don’t qualify for leave under the new FFCRA provisions, may be required by employers to take PTO or other leave.

Work policy pertaining to travel and quarantine: Employers have a general duty under OSHA to provide a work place free from known harms. Allowing employees traveling to hot spots without a quarantine may violate that duty. As with any policy, it needs to be applied consistently to similarly situated individuals. If you have several employees traveling, it would be less likely to be discriminatory if there was a blanket policy and application of the same – anyone traveling for any reason is required to WFH for 14 days following return. If they are not able to work from home, either due to the nature of the work or because they become ill, then the FFRCA may apply.

Ways to protect pay: The Federal Government has relaxed Unemployment Insurance requirements at the federal level and has provided guidance that each state may do the same. Because the UI requirements live at the state level, you will need to review the changes made by your state.

Questions regarding keeping a safe work environment:

1. Can we take the temperature / do a screening of new hires upon coming in on their first day?
2. I read it is reasonable to take temperatures, but should it be done by a qualified person such as an RN or person trained in first aid?
3. We are a Federal Contractor and 95% of our employees are authorized and already teleworking from home. Are we still able to ask them to let us know if they or anyone in their household are showing symptoms of or have tested positive for COVID-19? This is in an effort to inform those that may have in the past week or two come in contact with a positive case in the federal office where they were working. The EEOC guidelines are really not clear on asking folks to self-identify symptoms or positive COVID-19 test result once employees are already at home.

Answer:

Monitoring employee and candidate health: Many employers are concerned about how to maintain safety in the workplace during the time of this COVID-19 pandemic. Fever is often one of the first symptoms of the virus. Taking temperatures is acceptable provided that the information is confidential and used consistently for non-discriminatory purposes. The training recommended for taking a temperature should include how to maintain privacy and what to do when an employee has a fever, and how to practice hygiene to prevent any transmission. Companies are using no-touch thermometers to reduce that risk.

Inquiring about health and risk: Normally, inquiring about health unless directly job related isn’t permitted. However, these are not normal times. The EEOC has provided guidance stating that taking temperatures may be permissible. For more information see https://www.shrm.org/resources/andtools/legal/-and-compliance/employment-law/pages/eeoc-coronavirus-temperature.aspx.

Questions regarding maintain culture and morale:

1. Only a small portion of our corporate staff is still in office and we are a large retailer that is still considered an essential business. How do we help alleviate our retail employees’ questions and concerns about still needing to work?
2. We are still determining how many employees will be equipped to telework. Some employees’ paid leave will be exhausted due to the government building closure. We do not want to layoff anyone but we cannot provide a return-to-work date. What things are most important for us to communicate to those employees whose status is currently unclear?

Answer:

Different treatment for different segments of our workforce (culture clash): Transparency and communication can be effective in maintaining culture, especially when you have to treat people differently. Identifying the defining characteristics of the populations (office, retail, support, etc), helps to show that you are differentiating based upon duties and work environment for the purposes of maintaining essential work operations.

Providing rewards, incentives, or perks for those having to continue to work during this time, as well as assuring them that you are taking steps to ensure their safety is advisable.

As you build out your plans for next steps and consider role eliminations or temporary furloughs, it will be important to have clear criteria that can be applied, communicated, and understood. Uncertainty is a difficult thing to manage and depending upon the culture of your organization, it may be helpful to say that you are working through alternative plans, and that you will provide additional information by a certain date.

Questions regarding FMLA:

1. We are a small business that does not offer FMLA right now. When “stay at home” orders roll out, will there be documentation that is available to us to start the FMLA?
2. Do we have to start the FMLA conversation or do our employees have to start that conversation with us?
3. What documentation do we need to require from employees to approve FMLA?
4. With regards to the change in FMLA eligibility, is there still an “hours” component or just 30 days of tenure?

Answer:

Eligibility: Employees with at least 30 days of tenure, regardless of hours worked, are eligible for emergency family leave under the FFCRA.

Notice: Employers are required to post the policies and requirements as provided by the government.

Documentation: Employers should have a policy and procedure for foreseeable and unforeseeable leaves. General guidance about how to manage FMLA is provided by the DOL at https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/employerguide.pdf.

Questions regarding hiring and onboarding:

1. Is there a concession on the e-verify 3-day time frame for new hires?
2. Are copies of the documents for the I9 process acceptable until we can get the actual documents?
3. How do you onboard in a remote environment with regards to the I-9 documentation? How are other employers handling this?
4. What are your thoughts about waiting to hiring new staff? Our new hires would get unemployment or to meet the eligibility of the COVID-19 policies/programs. Would be it in the best interests of new employees to stay with their current employer (before putting their 2 weeks’ notice), knowing that our company may close or not have work for them to do?
5. What are people doing to hire and train new employees remotely? How do you get laptops to them, connect them with teammates, etc?
6. How are other companies determining start dates for new employees? Is there verbiage you are putting in your offer letters that explains the start date may change?
7. If we’ve extended an offer to someone, and COVID has limited or stopped operations, how should this be handled?

Answer:

Offer letters and start dates: For those that are continuing to hire new employees, being open about any softness during the conversation and documenting that in the offer letter is probably a good practice. Additionally, having a point of view about how you will handle pay for new hires in the event that their start date moves would be a good idea.

On boarding: For companies that have moved to 100% remote, it’s recommended that sending hardware to the new hire’s home rather than having them come into the office will help support physical distancing guidance. Additionally, leveraging video conferencing and social platforms to introduce teams and support will help to create a more positive experience. Zoom, Skype, Teams, Slack, and more help to maintain team cohesion.

I-9 verification relief: For employers that are 100% remote, the requirement for in person verification is deferred. If an employer has some on location operations, the deferral may not apply. The U.S. Department of Homeland Security (DHS) announced that it will defer the requirements for employers to review Form I-9 documents in-person with new employees. Read more.

Questions regarding policies and practices:

1. How are other companies handling the recent changes to policy? Are you making amendments to existing documents? Or just a solo document for FFCRA?

Answer:

Most companies are creating separate policies to address the COVID-19 situation since there are many changes in addition to the FFCRA. This will make it easier to roll back any temporary changes. References to existing policies are made in the new COVID policy.

Questions regarding posting exemption (OFCCP):

1. For federal contractors abiding by OFCCP, how does the recent National Interest Exemption Memo for Coronavirus Relief Efforts impact an organization and its recruiting/hiring efforts?
2. Is the requirement to post with state agencies waived?

Answer:

The exemption is for new federal contractors supporting the COVID-19 response and states that for a period of three months, such contractors are exempt from posting requirements. A copy of the national interest exemption memorandum can be found here: https://www.dol.gov/sites/dolgov/files/OFCCP/National-Interest-Exemption-Memo-Coronavirus-Relief-Efforts.pdf

As new information becomes available, and as laws changes, please continue to monitor developments to determine how they apply to you and your business. We are adding information and answering questions in our LinkedIn Group as well.

Author

Katie Coleman

Product Marketing Manager

Circa