Risk management and human resources guides as well as frequently asked questions to help you navigate the current environment. If you have additional concerns please reach out to us for more detail.
Review your paid time off policies as it relates to sick leave and err on the side of the employee when determining use. Under current CDC guidelines and in line with most state laws, employers may not require employees to provide a doctor’s note to substantiate a call-in due to an illness. However, under the EEOC’s ADA pandemic guidance, employers may ask specific questions about symptoms and it is recommended that information be documented. Ensure you remain HIPAA compliant and retain information confidentially. Additionally, the Department of Labor has recently issued regulations regarding the paid leave provisions of the FFCRA, which states that employees must give notice to their employers of their need to take sick or family leave and provide documentation to support that request. See sample Employee Leave Election Request Form, provided by the DOL.
On March 19th the President signed into law the FFCRA with several paid leave provisions, as outlined below:
The Act provides that covered employers must provide to all employees:
Two weeks (up to 80 hours) of expanded family and medical leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a healthcare provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
Two weeks (up to 80 hours) of expanded family and medical 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 Federal, State, or local government order or advice of a healthcare provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related 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.
Employers with fewer than 500 employees and public agencies with at least one employee.
The-paid-sick leave provisions took effect April 1, 2020 and expire on December 31, 2020.
Qualifying reasons for this paid sick leave include:
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 either number 1 or 2 above.
5. The employee is caring for his or her son or daughter if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID–19 precautions.
6. The employee is experiencing any other substantially similar condition specified by the secretary of health and human services in consultation with the secretary of the treasury and the secretary of labor.
For reasons (1)-(4) and (6): A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
For reason (5): A full-time employee is eligible for up to 12 weeks of leave at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.
For leave reasons (1), (2), or (3): employees taking leave shall be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).
For leave reasons (4) or (6): employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).
For leave reason (5): employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, 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).
Regular rate of pay is determined by calculating all regular pay to include overtime and any non-discretionary bonuses.
An employer may not require an employee to use other types of paid leave provided by the employer before the employee uses the paid sick time available under this law.
The Emergency Family and Medical Leave Expansion Act
The Emergency Family and Medical Leave Expansion Act amends the current Family and Medical Leave Act (FMLA), allowing leave for eligible employees who can’t work (or telework) because their minor child’s school or childcare service is closed due to a COVID-19 emergency declared by a federal, state or local authority.
Eligible employees include employees who work for an employer with fewer than 500 employees and who have been on the payroll for at least 30 calendar days.
April 1, 2020 and expires on December 31, 2020.
The first 10 days of this leave may be unpaid; however, employees may elect to substitute available paid time off, such as vacation, personal or sick leave, during this time. AND they would most likely are eligible under the EPSLA, as defined in above in #5.
After the initial 10 days, employers must pay eligible employees at least two-thirds of the employees’ regular rate of pay (as defined under the Fair Labor Standards Act) based on the number of hours the employees would otherwise have been scheduled to work. These paid-family-leave benefits are capped at $200 a day (or $10,000 total).
An employee working for a health care provider or an emergency responder can be excluded from these requirements by his or her employer.
A small employer with fewer than 25 employees is not obligated to reinstate an employee at the end of his or her leave if the employee’s position has been eliminated due to economic conditions or other changes in operating conditions of the employer caused by COVID-19, and the employer is unable to reinstate the employee to an equivalent position.
Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.
Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, 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. For more information, please see the Department of the Treasury’s website.
Each covered employer must post in a conspicuous place on its premises a notice of FFCRA requirements.
Employers may not discharge, discipline, or otherwise discriminate against any employee who takes expanded family and medical leave under the FFCRA and files a complaint or institutes a proceeding under or related to the FFCRA.
Here are some frequently asked questions regarding risk services and beyond. For additional information and guidance please reach out to us as we are here to help.
Yes, OSHA could cite you under the General Duty Clause as it the employer’s responsibility to provide a work environment that is healthy and safe for each employee.
The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1), which requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
There are signs available commercially or the employer could construct their own. A sign is a great reminder on any jobsite. Not required, but advisable.
1926.21(a) General requirements. The Secretary shall, pursuant to section 107(f) of the Act, establish and supervise programs for the education and training of employers and employees in the recognition, avoidance and prevention of unsafe conditions in employments covered by the act.
Yes, we have prepared a COVID-19 Prevention Plan here.
Yes. Under the FFCRA and EEOC Pandemic guidelines, asking these questions would not violate HIPAA. Employers have a duty to protect their employees, and this would fall in that category.
COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. However, employers are only responsible for recording cases of COVID-19 if all of the following are met:
1. The case is a confirmed case of COVID-19
2. The case is work-related, as defined by 29 CFR 1904.5; and
3. The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first-aid, days away from work).
If there is no evidence COVID-19 was contracted at work, it is not a recordable illness. For further explanation, go to https://www.osha.gov/SLTC/covid-19/standards.html
Yes, On April 1, 2020 the Center for Disease Control updated their website with directions how to safely clean and disinfect your facility. See here or for more information visit https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html
It varies. See this article on the topic since it is usually based on individual cases.
Managing Risk of Reduced Occupancy and Premises Shutdown.
Checklist for Business Shutdowns.
Coming out of Shutdown – Start-up Fundamentals and Safety Tips.
For older pandemic response information, please visit our Risk Services Pandemic Response Information Archive
Please be advised that any and all information, comments, analysis, and/or recommendations set forth above relative to the possible impact of COVID-19 on potential insurance coverage or other policy implications are intended solely for informational purposes and should not be relied upon as legal advice. LP Insurance provides this information as “insurance/risk management advisors” only, not as legal counsel. We have no authority to make coverage decisions as that ability rests solely with the issuing carrier. Questions about the legal aspects of an insurance policy or contract should be referred to your legal counsel to determine the applicability of this information to your business operation. Therefore, all claims should be submitted to the carrier for evaluation. The positions expressed herein are opinions only and are not to be construed as any form of guarantee or warranty. Finally, given the extremely dynamic and rapidly evolving COVID-19 situation, comments above do not take into account any applicable pending or future legislation introduced with the intent to override, alter or amend current policy language.