March 24, 2020
Over the past days, federal and state legislatures have enacted new laws in an effort to help employees and businesses during the coronavirus, or COVID-19, pandemic. Because the information surrounding the governmental response to the pandemic has been constantly changing and updated, many employees and employers have been left wondering: “How does this affect me?” Below are some answers to common questions that we are hearing from employers and employees on how to try to proceed with business and what actions have been taken to help secure employees’ financial stability during this crisis.
What can employers tell employees who cannot work?
Under Federal Law:
On March 18, 2020, President Donald J. Trump signed HR 6201, The Families First Coronavirus Response Act (the “FFCRA”). The FFCRA contains a number of components, but there are two major parts in particular that are important for employers to be aware of: (1) The Emergency Family and Medical Leave Expansion Act and; (2) the Emergency Paid Sick Leave Act. Both laws provide eligible employees with certain paid leave entitlements for reasons related to COVID-19. These laws will take effect on April 2, 2020, and will automatically sunset on December 31, 2020.
Under the Emergency Family and Medical Leave Expansion Act (the “EFMLA”), employers with fewer than 500 employees must provide “eligible” employees with up to 12 weeks of job protected leave. An employee is “eligible” if they have worked for the employer for at least thirty days by the time they request leave, and they are unable to work (or work remotely) due to a need to care for their minor son or daughter as a result of the child’s school or other place of care being closed, or because the child’s regular care provider is otherwise unavailable due to a public health emergency with respect to COVID-19 as declared by federal, state, or local government.
The first ten days of the EFMLA leave may consist of unpaid leave, although an employee may opt to use paid time off, vacation time, sick leave, or other paid leave (including under the Emergency Paid Sick Leave Act, which is addressed below) available to them. After the first ten days, the employer must pay the employee two-thirds of the employee’s regular pay, limited to no more than $200 per day and no more than $10,000 in total. Employers will be able to receive a payroll tax credit for any paid EFMLA leave as a result of this bill.
Under the EFMLA, it appears that an employer who employs a “health care provider” or an “emergency responder” may elect to exclude such employees from this leave. The Secretary of Labor will also have the authority to issue regulations to exclude certain “health care providers” and “emergency responders” from the bill. In addition, the Secretary of Labor will have the authority exempt employers with fewer than 50 employees from the EFMLA, if following the requirements of the law would “jeopardize the viability of the business as an ongoing concern.” The EFMLA further provides that employers with fewer than 50 employees are not subject to certain civil damages in the event of a violation of the law.
In the coming days, the Department of Labor is expected to issue regulations and interpretative guidance on these, and potentially other, issues.
The EFMLA temporarily expands, but does not replace, the regular FMLA. In other words, an employee who does not qualify for paid leave under the EFMLA may still qualify for up to 12 weeks of normal, unpaid job protected leave under the FMLA if the employee is otherwise eligible and works for a covered employer (i.e., generally those employers with more than 50 employees).
Under the Emergency Paid Sick Leave Act (the “EPSLA”), any employer with fewer than 500 employers is now required to provide immediately available paid sick leave, regardless of how long the employee has been employed, if the employee is unable to work (or work remotely) for the following purposes related to COVID-19:
- The employee is subject to a federal, state, or local quarantine or isolation order;
- The employee has been advised by a health care provider to self-quarantine;
- The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
- The employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order, or who has been advised by a health care provider to self-quarantine;
- The employee is caring for a minor son or daughter if the school or daycare of the child has been closed, or the provider is otherwise unavailable; or
- The employee is experiencing any other “substantially similar condition.”
All full-time employees are entitled to eighty hours of paid sick leave, while part-time employees are entitled to the average number of hours the employee has worked in the last two weeks. Paid leave for each employee under the EPSLA is capped at $511 per day (or $5,110 in the aggregate) for leave required due to the employee’s own quarantine, isolation, medical diagnosis, or treatment, and $200 per day (or $2,000 in the aggregate) for leave taken by an employee to care for a family member or child. The amount of pay under the EPSLA will be the employer’s regular rate of pay if they are out of work due to their own health issues, quarantine, or isolation, or two-thirds their standard rate of pay if they are out due to the need to care for a child or another. As with the EFMLA, employers will be entitled to a payroll tax credit for all benefits paid out to employees under the EPSLA.
Additionally, it is important to note that these provisions are in addition to an employer’s existing paid-sick leave policies and employers are prohibited from requiring that employees use previously provided paid time off before using the new paid leave under this new law.
For more information, please see our prior blog posts entitled “HR 6201 Creates New FMLA Entitlement and Paid Leave for Employee” and “How Do the New Leave Laws Apply to Your Business.”
Under Maine Law:
Maine has also recently passed new legislation in response to the coronavirus pandemic.
Under the amendments to Maine’s unemployment law, employees may be eligible for unemployment compensation benefits if: (1) the employee is under a temporary quarantine or isolation restriction due to COVID-19, but is expected to return to work; (2) the employee is temporarily laid off due to a full or partial closure of their place of work due to COVID-19, but they are expected to return to work once the closure ends; or (3) the employee is on a temporary leave of absence due to a medical quarantine or isolation restriction, a demonstrated risk of exposure to the coronavirus, or the need to care for a dependent family member due to the virus.
The emergency amendments also waive the one-week waiting period after an individual applies for unemployment, and removes the requirement that an individual be actively seeking work, provided that the employer plans to return that individual to his/her job when operations resume and the employee remains in contact with the employer during the period of unemployment. Employers may continue to provide health insurance coverage during this period and it will not affect the employee’s ability to receive unemployment.
Benefits that are paid to employees pursuant to these emergency amendments will be charged to the State of Maine’s General Fund, and the employer’s experience rating record will not be charged.
Maine employers have also been encouraged to participate in a Workshare program. This program helps businesses retain their work force during the temporary slowdown in work. In lieu of layoffs, employers can voluntarily reduce employee hours. Employees can then apply and collect partial unemployment benefits to help offset the loss of income. Employers should contact an attorney before considering the Workshare program, as there are certain application materials that must be submitted and rules that the employer must follow.
A tip for Maine employers: if you close your business for the recommended two-week period, document your decision to close based on the Governor’s recommendations. If you plan to temporarily lay off employees, document that decision as well. These could provide your employees with the necessary information to file for unemployment under this new law.
I have an employee who has been out with a cough and sore throat. Can I ask that they provide a negative test result prior to returning to work?
The U.S. Equal Employment Opportunity Commission (“EEOC”), which is responsible for enforcement of federal workplace anti-discrimination laws, has taken the stance that employers may require an employee produce a doctor’s note clearing them to return to work in light of the COVID-19 pandemic.
What questions can I ask employees about their symptoms if they call out sick?
According to the EEOC, an employer can ask employees if they are experiencing symptoms of coronavirus. These symptoms include, fever, chills, cough, shortness of breath, or sore throat. Employers are required to maintain all information about employee illness as a confidential medical record.
Can I take an employee’s temperature?
In the past, generally the answer has always been “no” as that counts as a medical examination. However, as the CDC has acknowledged community spread of coronavirus, the EEOC has issued new guidance to employers allowing them to take employee temperatures. Employers should note that some people with coronavirus do not have fevers.
I am a small business owner with 10 employees, what can I do?
The federal legislation discussed above gives the Secretary of Labor the authority to issue regulations to exempt businesses with fewer than 50 employees from this law, if the obligations would jeopardize the viability of the business. However, because the law will not be effective until April 2, and regulations have yet to be issued, we do not yet know whether those regulations will be forthcoming before the law becomes effective or what they will include.
If an employee travels out of state, can an employer request the employee stay home for 14 days?
Yes, the CDC and other local public health officials recommend that people who have visited specific locations remain at home after traveling. Therefore, employers can ask employees where they traveled, and if it was to one of those specific locations, an employer can require an employee stay home for 14 days.
If an employee’s spouse/partner is exposed to someone with suspected coronavirus, can an employer send the employee home for 14 days?
Yes. The EEOC has said, during a pandemic, employers are not required to wait until employees develop symptoms to ask about possible exposure and require they follow CDC or local health official guidelines.
What questions can an employer legally ask an employee about his/her symptoms?
During the pandemic, employers may ask employees if they are experiencing any symptoms of the pandemic virus. For coronavirus, this includes fever, chills, cough, shortness of breath, or shore throat. The Employer must maintain all information learned as a confidential medical record in compliance with the ADA.
How does an employer protect employee privacy if an employee tests positive for coronavirus?
After learning that an employee has tested positive, an employer should send home all employees that worked closely with infected employee within the last 14 days. Ask the infected employee whom he/she came into close proximity with in the last 14 days and send those employees home, but you cannot identify the employee who is infected.
Does an employee with a depressed immune system qualify for any Paid sick leave Under the New Federal Legislation?
The EFMLA only applies to an employee who cannot work due to the need to care for a minor son or daughter who is out of school due to the public health emergency.
However, the EPSLA could apply if an employee is unable to work if the employee is subject to a federal, state, or local quarantine or an employee who has been advised by a health care provider to quarantine due to concerns related to coronavirus.
Bear in mind, however, that employees who do not qualify for paid leave under the new federal legislation may be entitled to other unpaid statutory leave entitlements, and/or paid or unpaid leave pursuant to your workplace policies. You should contact an employment attorney if you have any questions as to whether a particular employee may be entitled to any leave.
For employees requesting reduced schedules or leave, what should employers provide them as they are hoping for unemployment?
Under the emergency amendments to Maine’s unemployment laws, employees can qualify for unemployment if: (1) the employee is temporarily laid off due to a partial or full closure of the Employer as a result of the state of emergency and is expected to return to work when the emergency closure is lifted; (2) an employee who is temporarily quarantined to ensure the employee has not been affected with the expectation of returning to work once the quarantine is over; (3) and employees who are on a temporary leave of absence from their employment due to risk of exposure of infection, or to care for a family member. If the employee falls into one of these categories and requests documentation for purposes of applying for unemployment, a simple note or letter from the employer confirming the reason(s) for the layoff or leave of absence should suffice.
For salaried staff requesting reduced schedules, they must stay at the $692.31 per week or be changed to hourly with no exceptions, correct? With approval of their leave and written agreement of a reduced work schedule, are we ok to reduce the salary?
The answer to this question depends on a number of factors. First, is there a contract or collective bargaining agreement that sets the compensation arrangement for the employee? If so, you must follow the contract. If not, then you do have the ability to alter the terms of their compensation prospectively (but not retroactively).
Second, assuming you are able to alter the employee’s compensation arrangement, and assuming the employee is properly exempt under federal and state wage and hour laws, consider whether you want the employee to maintain that exempt status. If so, you are generally going to be required to pay them at least $692.31 in salary per week for every week in which they perform work – even if they are working on a reduced schedule. There are some potential exceptions to this, but this can get complicated. You should consult an attorney before reducing an exempt salary’s pay if you wish to maintain exempt status.
In the alternative, you may decide that you are okay with temporarily modifying an employee from exempt to non-exempt status, in which case you can pay the employee on an hourly basis or some other type of compensation arrangement. Be mindful, however, that you will need to carefully track all hours worked by such an employee to make sure that (1) they have been paid at least the federal and state minimum wage for all hours actually worked, and (2) they have been paid overtime for all hours worked in excess of 40 hours per week during the time period in which they were non-exempt.
If employer has 100 employees what is the difference between laying off employees so they can receive unemployment or them having to take FMLA and employer has to pay for the 2/3 required?
Perhaps the largest difference between these programs, at least from the employer’s perspective, is who is responsible for paying the benefits to the employees. Employees who obtain unemployment benefits pursuant to the emergency amendments will be compensated directly by the State of Maine, and the employer’s experience rating will not be charged. Conversely, employees who receive benefits pursuant to the EFMLA and/or the EPSLA will be paid directly by the employer.
Further, as noted above, there are different eligibility criteria for the state emergency unemployment amendments as compared to the EFMLA and EPSLA.
This information is accurate as of March 24, 2020, and is subject to change based on any new legislation.
Kelsey C. Doane, Esq