By Rob Gilmore & Lyndsay Ross
While the COVID-19 crisis is ongoing, we are beginning to receive clarity as to the current state of employment law. The Department of Labor has issued regulations (and corrections) which fill in the holes left by the Families First Coronavirus Response Act (FFCRA), and has provided substantial resources to help interpret the FFCRA. More recently, the Equal Employment Opportunity Commission has provided guidance to complying with the Americans with Disabilities Act and other equal opportunity laws in the wake of COVID-19.
Below are the questions we have received most frequently regarding the FFCRA, the CARES Act and general employment law requirements in Ohio. Should you have a question that is not answered below, please reach out to our Employment Law Response Team.
Families First Coronavirus Response Act & Department of Labor Guidance
Q: WHO IS A COVERED EMPLOYER UNDER THE FFCRA?
A: Under the FFCRA, a “covered employer” is an employer with less than 500 employees. The number of employees is determined at the time an employee qualifies for leave (e.g. when the employee has been advised by a health care provider to self-quarantine). If an employer is hiring, it is possible that at the time that an employee qualifies for leave, it must be provided, but at a later date, leave will not be required if the employer has over 500 employees at that time. If workers are employed jointly with another employer, those workers must be counted for this purpose. Further, all employees must be within the United States, so any employees abroad will not count for this purpose.
Q: DO I QUALIFY FOR THE SMALL BUSINESS EXEMPTION?
A: Both the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA) under the FFCRA have a small business exemption. To qualify, you must be a “small employer” or have fewer than 50 employees. The exemption may only be claimed if an employee is seeking leave for childcare reasons. Further, an authorized officer of the business must have determined that one of three conditions has been met:
- Allowing the employee to take leave would cause the employer’s financial obligations to exceed available revenue and prevent operating at minimal capacity;
- The employee’s absence would pose substantial risk to the financial health or operational capacity of the business; or
- The employer cannot find adequate replacement workers needed to operate at minimum capacity.
If an employer opts to claim the exemption, they must document why and retain that documentation for four years.
Q: WHAT ABOUT THE HEALTH CARE PROVIDER AND EMERGENCY RESPONDER EXEMPTION?
A: An employer can choose to exempt health care providers and emergency responders from paid leave under the EPSLA and the EMFLEA. “Health care providers” and “emergency responders” are very broad categories and include more individuals than may be expected. A “health care provider” is any individual capable of providing health care services necessary to combat COVID-19. An “emergency responder” is anyone necessary to provide transport, care, comfort and nutrition to patients with COVID-19. Employers are allowed, but not required, to exempt such individuals, and are encouraged to be judicious in deciding to exempt such employees so as to minimize the spread of COVID-19.
Q: HOW DO I QUALIFY FOR LEAVE UNDER THE EFMLEA?
A: An employee must have been on the job for 30 days. The employee must be seeking leave to care for a child home due to COVID-19, such as due to a school or daycare closure. An employee must be unable to work or telework to be eligible for leave. An employee may take up to 12 weeks of leave, and any time taken counts toward the typical 12 weeks an employee would be permitted to take under the Family and Medical Leave Act (FMLA). An employee may choose, or an employer may require, an employee to use leave that they have accrued under employer policy to care for a child concurrently with EFMLEA leave.
Q: HOW MUCH LEAVE AM I ENTITLED TO UNDER THE EFMLEA?
A: After two unpaid weeks (remembering that during these weeks, the employee can use other paid leave to which they are entitled, including EPSLA leave), the employer must pay for each day of EFMLEA leave at 2/3 of the employee’s regular rate multiplied by the number of hours normally worked. If the employee has a varying schedule, the daily pay must be based on the average hours the employee was scheduled to work per day in the prior six-month period. Paid leave is capped at $200 per day and $10,000 overall. Overtime hours must be included, because the EFMLEA leave requires an employee to be compensated for the number of hours the employee would normally be scheduled to work, even if that number exceeds 40 hours per week.
Q: IS THERE A RIGHT TO RETURN TO WORK UNDER THE EFMLEA?
A: Yes, the employer is required to return the employee to work following the leave. However, there is an exception for employers with fewer than 25 employees, if:
- The employee’s position no longer exists due to economic or operating conditions as a result of the COVID-19 emergency; and
- The employer makes reasonable efforts to restore the employee to an equivalent position. The employer has a duty to contact the employee if an equivalent position becomes available through the end of this year.
Q: HOW DO I QUALIFY FOR LEAVE UNDER THE EPSLA?
A: An employee must meet one of six qualifications:
- Be subject to a federal, state, local quarantine/isolation order
- Be advised by a health care provider to self-quarantine
- Be experiencing symptoms of coronavirus and seeking a medical diagnosis
- Be caring for a person subject to a quarantine/isolation order or advised to self-quarantine
- Be caring for a son or daughter whose school or place of childcare is closed
- Be experiencing any other substantially similar condition
For reasons (1) and (5), leave may be taken only if being subject to the order or the reason for childcare prevents the employee from working or teleworking.
Q: DOES A STAY-AT-HOME ORDER QUALIFY AS BEING SUBJECT TO A FEDERAL, STATE, OR LOCAL QUARANTINE OR ISOLATION ORDER?
A: No. Shelter in place orders do not make employees eligible for paid sick leave. This is because, to qualify for paid sick leave, the question is whether an employee would be able to work or telework but for being required to comply with the quarantine or isolation order. Since here, the employee would not be able to work regardless, the employee is not entitled to EPSLA leave.
Q: HOW MUCH LEAVE AM I ENTITLED TO UNDER THE EPSLA?
A: Employees may take two weeks, or 80 hours, of EPSLA leave. To care for oneself, leave is paid at the employee’s regular rate, subject to a daily cap of $511 and an aggregate cap of $5,110. To care for others, leave is paid at 2/3 the regular rate, subject to a daily cap of $200 and an aggregate cap of $2,000.
Q: MAY FULL EPSLA LEAVE BE TAKEN AT TWO DIFFERENT TIMES?
A: No. Leave may be taken for a total of 80 hours, for any combination of qualifying reasons. If an employee takes two weeks of paid EPSLA leave to comply with a health care provider’s recommendation to self-quarantine, the employee may not later take two more weeks for childcare related reasons.
Q: CAN AN EMPLOYER DENY AN EMPLOYEE EPSLA LEAVE, IF THE EMPLOYER GAVE THE EMPLOYEE PAID LEAVE FOR A QUALIFYING REASON UNDER THE EPSLA PRIOR TO THE ACT GOING INTO EFFECT?
A: No. The EPSLA imposes a new leave requirement on employers, effective starting April 1, 2020. Neither paid leave under the EPSLA nor the EFMLEA is retroactive.
Q: MAY I TAKE INTERMITTENT LEAVE?
A: Intermittent leave is available under both the EPSLA and the EFMLEA. Employees who are still reporting to work may take intermittent leave only if leave is being taken for childcare reasons. Leave may still be taken intermittently if the employee is teleworking. To take intermittent leave, both the employer and the employee must agree to the intermittent leave, including the time increments. The agreement does not have to be in writing, but there must be a clear and mutual understanding between the employer and the employee as to the terms of leave.
Q: IF MY EMPLOYER CLOSED THE WORKSITE PRIOR TO APRIL 1, CAN I STILL RECEIVE EPSLA OR EFMLEA LEAVE?
A: No. If the worksite closed prior to the effective date of the FFCRA, EPSLA and EFMLEA leave is not available, but unemployment insurance benefits may be. This is true even if the worksite was closed to comply with a federal, state or local directive, or if it closed due to lack of business.
Q: TO TAKE LEAVE, WHAT KIND OF DOCUMENTATION MUST BE PROVIDED?
A: The employee must provide a signed statement containing: (1) the employee’s name; (2) the dates for which leave is requested; (3) the COVID-19 qualifying reason; and (4) a statement that the employee is unable to work due to that reason. Depending on the COVID-19 qualifying reason, additional documentation is required.
If leave is being taken to comply with a quarantine or isolation order, the employee must provide the name of the issuing government entity. If leave is being taken to comply with a health care provider’s recommendation to self-quarantine, the employee must provide the name of the health care provider. If leave is being taken to care for an individual who is subject to a quarantine or isolation order, or who has been advised to self-quarantine, the employee must provide the name of the issuing government entity or the name of the health care provider, as applicable. If leave is being taken to care for a child home due to COVID-19, the employee must provide the name of the child, the name of the school or place of childcare closed due to COVID-19, and a statement that there is no other suitable person available to care for the child during the period of requested leave.
Q: WHAT KIND OF RECORDS MUST THE EMPLOYER KEEP?
A: An employer is required to keep all documentation employees present to them in support of leave, regardless of whether leave was granted, for four years. An employer must also keep documentation where the small business exemption is claimed for four years. Other information must be retained to qualify for the payroll tax credit.
Q: DOES AN EMPLOYER FACE ANY CONSEQUENCES FOR NON-COMPLIANCE?
A: An employer who violates the EPSLA is considered to have violated the Fair Labor Standards Act’s (FLSA) minimum wage mandate. The Secretary of Labor may bring an action against the employer to recover an amount equal to the federal minimum wage plus liquidated damages. In the case of a willful or repeated violation, the employer is also subject to a civil penalty for each violation, as well as liquidated damages.
Q: CAN I TAKE EPSLA LEAVE TO CARE FOR MY CHILDREN, EVEN IF I HAVE BEEN TELEWORKING WITH MY CHILDREN AT HOME?
A: Yes. The fact that schools have been closed does not mean than an employee cannot now qualify for EPSLA leave. The Department of Labor offered numerous examples where this might be appropriate, such as if the employee was unable to effectively care for their children while teleworking, or if the employee must now take leave so that their spouse, who is unable to take leave, may return to work or telework.
Employers can require that the employee provide the standard information for taking leave (i.e. the qualifying reason, a statement that the employee is unable to work for this reason, etc.). Employers can also request the employee to describe what circumstances have changed in their request for leave but should exercise caution – denying leave based on the fact that the employee previously had been teleworking from home and now cannot is prohibited.
Q: CAN I TAKE PAID LEAVE TO CARE FOR MY CHILDREN BECAUSE THEIR SCHOOL IS CLOSED FOR THE SUMMER?
A: No. This is an insufficient reason for leave, because the school would be closed for the summer regardless of COVID-19. However, if the children’s summer childcare provider is unavailable due to COVID-19 related reason, such as a summer camp closed in the wake of COVID-19, then the employee may qualify for EPSLA or EFMLEA leave.
Q: WHAT KIND OF DOCUMENTATION CAN AN EMPLOYER REQUIRE IF AN EMPLOYEE IS SEEKING EPSLA LEAVE BECAUSE THEY ARE EXPERIENCING COVID-19 SYMPTOMS AND SEEKING A DIAGNOSIS?
A: An employer can only require the employee to identify the symptoms they are experiencing and the date for which they have a test or doctor’s appointment scheduled. The information required for this qualifying reason is intentionally light so as to encourage sick employees to stay home and slow the spread of COVID-19. For that reason, an employer may not require additional information or documentation, or a certification from a health care provider that diagnosis or treatment was sought.
The CARES Act
Q: WHAT DOES THE CARES ACT ADD FROM AN EMPLOYMENT PERSPECTIVE?
A: The CARES Act expands unemployment insurance benefits. The Federal Pandemic Unemployment Compensation (FPUC) program allows benefits in addition to benefits that individuals may receive from the unemployment insurance they are currently receiving from their state.
Q: WHAT KIND OF PAYMENT CAN I RECEIVED UNDER FPUC?
A: Individuals may receive 26 weeks of benefits and, beginning April 5, 2020, an additional $600 per week until July 31, 2020. The CARES Act also provides for an additional 13 weeks of benefits if the individual remains unemployed after 26 weeks, at a weekly rate of $600, through the Pandemic Emergency Unemployment Compensation program.
Q: WHAT IF I DON’T APPLY FOR TYPICAL UNEMPLOYMENT ASSISTANCE?
A: The Pandemic Unemployment Assistance (PUA) program provides unemployment benefits to individuals who are not otherwise eligible for, or have exhausted all rights to, unemployment benefits, and individuals who are unemployed, partially unemployed or unable work due to COVID-19 related reasons. Individuals such as independent contractors or the self-employed or partially employed are eligible. PUA benefits are available from Jan. 27, 2020 through Dec. 31, 2020, for a maximum of 39 weeks.
Employment in Ohio
Q: AM I ELIGIBLE FOR UNEMPLOYMENT IN OHIO?
A: Governor Dewine’s recent executive order expanded the definition of those who may be unemployed to include individuals who have been quarantined or isolated or impacted by a business closing due to COVID-19, even if they do not test positive for COVID-19. Additionally, waiting periods for filing an unemployment application have been suspended, and there are exemptions to the standard requirement that an employ be actively seeking work to file for unemployment. You may file for Ohio unemployment benefits at: https://unemploymenthelp.ohio.gov.
Q: CAN EMPLOYERS PROHIBIT EMPLOYEES FROM GOING ON VACATION?
A: While employers may mandate that employees inform them ahead of travel to an area with a known outbreak or elevated risk, state or local laws may limit an employer’s ability to regulate personal travel. Employers should make employees aware that, once they return, they may be required to self-quarantine before coming back to the office. We recommend that these matters be evaluated carefully on a case-by-case basis.
Q: CAN EMPLOYERS REQUIRE EMPLOYEES TO TRAVEL RIGHT NOW?
A: In certain circumstances, probably, but we do not recommend mandating travel at this point unless absolutely necessary. Some employers are currently curtailing all nonessential travel as part of their infectious control strategy. Employers also face the risk of lawsuits if employees are infected during mandated travel.
Q: CAN EMPLOYERS REQUIRE EMPLOYEES TO DISCLOSE THEIR TRAVEL PLANS?
A: Yes, an employer may instruct employees to inform the employer of past or future travel plans in order to allow the employer to reasonably evaluate the risk to other employees or customers.
Q: CAN EMPLOYERS REQUIRE EMPLOYEES TO DISCLOSE WHETHER EMPLOYEES OR THEIR FAMILY MEMBERS HAVE COVID-19?
A: Yes, under the ADA and during a pandemic, an employer may require employees to disclose whether they or their family members have been exposed to COVID-19. According to EEOC Pandemic Guidance, “If an influenza pandemic becomes more severe or serious according to the assessment of local, state or federal public health officials, ADA-covered employers may have sufficient objective information from public health advisories to reasonably conclude that employees will face a direct threat if they contract pandemic influenza. Only in this circumstance may ADA-covered employers make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of influenza complications.”
Q: CAN EMPLOYERS ASK AN EMPLOYEE WHY HE OR SHE HAS BEEN ABSENT FROM WORK IF THE EMPLOYER SUSPECTS IT IS FOR A MEDICAL REASON?
A: Yes, under the ADA and during a pandemic, asking why an individual did not report to work is generally permitted and not a disability-related inquiry.
Q: CAN EMPLOYERS PROHIBIT EMPLOYEES FROM RETURNING TO WORK UNTIL AFTER THE INCUBATION PERIOD HAS PASSED?
A: In certain circumstances, yes. We recommend that these matters be evaluated carefully on a case-by-case basis. For instance, if the employee traveled to an area with an elevated risk of exposure or came into contact with large numbers of people, reasonable restrictions are likely permitted under these circumstances.
Q: CAN EMPLOYERS REQUIRE EMPLOYEES WHO HAVE BEEN SELF-QUARANTINED TO PROVIDE A DOCTOR’S NOTE VERIFYING THAT THEY DO NOT HAVE COVID-19?
A: As an infectious control strategy, yes. But also note the following EEOC guidance: “As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.”
Q: MAY AN EMPLOYER OPT TO PAY AN ASYMPTOMATIC EMPLOYEE WHO HAS SELF-QUARANTINED, EVEN IF THE EMPLOYER’S POLICY DOES NOT PROVIDE FOR PAID LEAVE AND THEY DO NOT APPLY FOR ANY PAID LEAVE UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT?
A: Yes. If they do, employers should clearly establish any deviation from their normal policies and send specific instructions as to how and when the deviations will apply. In fact, some employers are already taking these steps to boost employee morale during the pandemic.
Q: HOW DO WE HANDLE EMPLOYEES WHO REPORT FEELING ILL AT WORK OR WHO CALL IN SICK?
A: Employers are generally permitted to ask such employees if they are experiencing influenza-like symptoms in order to evaluate the overall risk and how to respond. The ADA requires you to keep all the information about the employee illness confidential.
Q: CAN EMPLOYERS SEND EMPLOYEES HOME IF THEY DISPLAY INFLUENZA-LIKE SYMPTOMS?
A: Yes. The guidance issued by both the CDC and WHO state that employees displaying such symptoms should leave the workplace. Please reference your CBA if the workforce is unionized or your employer handbook to ensure compliance with any additional requirements.
Q: CAN EMPLOYERS REQUIRE EMPLOYEES TO WORK REMOTELY?
A: As an infectious control strategy, yes. Please reference your CBA if the workforce is unionized or your employer handbook to ensure compliance with any additional requirements.
Q: CAN AN EMPLOYER REQUIRE EMPLOYEES TO WASH THEIR HANDS AND FOLLOW CERTAIN PROTOCOLS?
A: As an infectious control strategy, yes. Hand washing and proper illness etiquette is generally permitted.
Q: CAN EMPLOYERS REQUIRE EMPLOYEES TO WEAR MASKS AND OTHER PROTECTIVE CLOTHING?
A: As an infectious control strategy, yes; provided however, the employer needs to comply with the ADA and provide reasonable accommodations under the ADA, absent undue hardship.
Q: DOES MY EMPLOYER HAVE A DUTY TO PROTECT ME FROM AN INFECTIOUS DISEASE AT WORK?
A: To the extent possible, generally, yes. Federal and state regulations require employers to provide a safe workplace.
If you have questions or would like to discuss further, please reach out to Rob Gilmore at firstname.lastname@example.org or 216.736.7240.