Protective Measures for Employers During the COVID-19 Pandemic / Communication on Families First Coronavirus Response Act

March 20, 2020

Protective Measures for Employers During the COVID-19 Pandemic

Instructing Employees to Stay Home or Leave Work

It is important that employees with obvious symptoms of illness and disease, including all forms of the flu, should be encouraged to stay home or if they are at work when symptoms develop, to go home. Employers should speak with employees in private who evidence flu-like symptoms or complain of flu-like symptoms and recommend/require that they go home.

The CDC recommends that employers place posters in the workplace that encourage employees to stay home when sick, as well as set out cough and sneeze etiquette.

While a diligent and enthusiastic employee is appreciated, the overall effect of a sick employee coming to work or remaining at work can also have a negative impact on other employees’ health as well as the overall operation and management of the workplace.

At the end of the day, an employer has the right to mandate that sick employees do not come to work or must leave work when their health appears to be compromised.

This is in keeping with the CDC’s policy recommending that people who are experiencing respiratory illness stay at home until they are free of fever and other symptoms, such as frequent and severe coughing, for at least 24 hours without the use of medicines such as aspirin and cough suppressants.

While it is okay to require that employees leave work if they are evidencing flu-like symptoms or to stay home under like circumstances, remember, that employers should not (and cannot) provide medical advice to sick employees; rather, they should only suggest that an employee speak with the employee’s physician, the local health department, and to use telemedicine as appropriate (and if available).

Continuing in this vein, employers should not (and may not) mandate that employees submit to Coronavirus testing; have their temperature taken; or receive a flu shot. With respect to the latter, this does not prevent employers from offering to its employees’ flu shots on a voluntary basis.

Other Measures to Limit Exposure in the Workplace

Provide tissues and no-touch disposable receptacles for employee use.
Instruct employees to clean their hands often with alcohol-based hand sanitizer that contains at least 60-95% alcohol or wash their hands with soap and water for at least 20 seconds.
Ensure that there are ample facilities for employees to wash their hands.
Provide soap and water and alcohol-based hand rubs in the workplace and
ensure that adequate supplies are maintained.
To the extent possible stagger break times to limit the number of employees in common areas at any one time.

Confidentiality and Privacy

It is suggested that you use caution when sharing information with the workforce about employees who have tested positive for the Coronavirus or are symptomatic. There are potential employee privacy rights at risk associated with such disclosures. This is said even though the CDC suggests that an employer tell employees that a specific employee has contracted Coronavirus; has been exposed to Coronavirus; or has traveled to an area that the CDC has designated a hot spot. It is strongly recommended that a particular employee’s name not be revealed, though realistically most of his/her fellow employees will figure out who it is.

If an employee has tested positive, all employees who have worked closely with that employee for a 14-day period of time should be sent home to ensure that the infection does not spread. The infected employee should identify for the employer those individuals with whom he/she has worked in close proximity with (which is generally meant to be three to six feet) in the previous 14 days.

Do not identify the infected employee by name. Subsequently, employers should deep clean the affected workspace to the extent possible.

To the extent an employer shares office building space or areas with others, the employer should advise the building management so that they may take whatever precautions they deem necessary.

The foregoing precautions also apply in the event of an employee who has a suspected but unconfirmed case of Coronavirus and the employee should be sent home. In this situation as well, the employer should confer with fellow employees to let them know that while an employee has not tested positive for the virus he/she has been exhibiting symptoms that may possibly lead to a positive diagnosis.

The same procedures as above also apply in those instances of an employee advising that the employee has come in contact with someone who had a presumptive positive case of the Coronavirus.

This notice regarding the Families First Coronavirus Response Act is provided to serve as an overview of the new law and does not constitute legal advice. For additional information, please contact members of Gislason & Hunter LLP’s Labor and Employment Practice Group, attorneys Cory Genelin, Brittany King-Asamoa, David Sturges, or Jennifer Lurken at 507.387.1115.

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Communication on Families First Coronavirus Response Act

The Families First Coronavirus Response Act was signed into law on March 18, 2020, and takes effect on April 1, 2020. Employers across the nation will be obligated under the Act to provide expansive leave to employees. Below are key points from the Act for employers to consider regarding the leave:

Emergency Family and Medical Leave Expansion Act (EFMLA)

Applicability. Employers with less than 500 employees, must provide paid family and medical leave to any employee, who has worked at least 30 days for the employer, up to 12 workweeks of leave if the employee cannot work or telework because the employee must care for his/her child because (1) the child’s school or place of care is closed due to a public health emergency (“PHE”); or (2) the child’s care provider is unavailable due to a PHE.
- PHE under the Act is an emergency with respect to COVID-19 declared by a federal, state, or local authority. For example, the school is closed because Governor Walz order the schools to close and the employee is not able to work remotely.
First Ten (10) Days of Leave. The first ten (10) days of EFMLA leave may be unpaid, but the employee may elect to use any other accrued paid leave for such time, including Emergency Paid Sick Leave provided under the Families First Coronavirus Response Act.
Paid Leave. After the first ten (10) days of EFMLA leave, the employee must be paid at a rate of not less than two-thirds (2/3) of the employee’s regular rate of pay but capped at $200/day and $10,000 total. Payment for each day is calculated based on the number of hours employee would have worked. If the employee’s number of hours fluctuate, hours should be based on average hours the employee worked per day in the preceding 6-month period; or, if employed less than 6 months, the reasonable expectation of average hours per day at time of hire.
Job-Protection. Restoring employees to their same position and seniority following leave still applies as it does under the Family Medical Leave Act of 1993, except for employers with less than 25 employees, where (1) the employee was on EMFLA leave; and (2) his/her position was eliminated because of economic conditions or changes in operating conditions of the employer because of the PHE. These excepted employers with less, must still nevertheless:
- Make reasonable efforts to place the employee in an equivalent position; or if such efforts fail;
- Make reasonable efforts to place the employee in an equivalent position if one becomes available in the next year from either (a) the date the employee’s need for EFMLA leave concludes; or (b) the date 12 weeks after the date need for EFMLA leave began.
Forthcoming Regulations and Possible Exemptions. The EFMLA authorizes the United States Secretary of Labor to issue regulations exempting small businesses with less than 50 employees from providing this leave when such would jeopardize the viability of the business as a going concern. But, there is no guarantee this will occur. As of now, all employees with less than 500 employees are subject to and must provide the above-described leave to eligible employees.

Emergency Paid Sick Leave Act

Applicability. Employers with less than 500 employees must provide the following paid sick time to employees: (1) 80 hours for full-time employees; and (2) part-time employees must receive at least the same hours that such employee worked on average over a 2-week period.
Eligibility. Employees may use this leave immediately. The leave will not carry over from year to year and ends on the employees next scheduled work shift immediately following the termination of the need for leave.
- Employer cannot require employee to find a replacement to cover his/her shift;
- Employer cannot require employee to first exhaust other paid leave.

Use of Paid Leave. An employee may use this emergency paid leave if he/she is unable to work or telework because of any of the following reasons:

1. Employee is under a federal, state, or local quarantine or an isolation order because of COVID-19;
2. Health care provider recommended that the employee self-quarantine because of COVID-19;
3. Employee is experiencing symptoms of COVID-19 and is seeking medical diagnosis;
4. Employee is caring for an individual who is subject to federal, state, or local quarantine, isolation order, or was advised by health care provider to self-quarantine because of COVID-19;
5. Employee is caring for child whose school or place of care closed, or whose care provider is unavailable because of COVID-19 precautions
6. Employee is experiencing a condition substantially similar to COVID-19 specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor.

Pay for this emergency sick leave is dependent upon the reason for leave. If the employee uses the paid leave for reasons 1, 2, or 3 above, the employee must be paid the greater of (a) his/her regular rate of pay per hour; (b) the federal minimum wage per hour; or (c) the state minimum wage per hour, with a cap of $511 per day and $5,110 total.

If leave is for reasons 4, 5, or 6 above, the employee must be paid the greater of two-thirds (2/3) (a) his/her regular rate of pay per hour; (b) the federal minimum wage per hour; or (c) the state minimum wage per hour, with a cap of $200 per day and $2,000 total.

Anti-Discrimination and Retaliation. Employers shall not discharge, discipline, or discriminate or retaliate against any employee exercising his/her rights under the Families First Coronavirus Response Act.
Forthcoming Regulations and Possible Exemptions. The United States Department of Labor (DOL) has the same authority to implement regulations and exemptions for smaller businesses as described above.

Tax Credits for Paid Sick and Paid Family and Medical Leave

To ease the financial burden on employers, the Families First Coronavirus Response Act offers employers tax credit depending on the employee’s use of paid leave. In brief, credit is available for the employer against the tax imposed by 26 USC §§ 3111(a), 3221(a) for each calendar quarter in an amount equal to 100% of the qualified sick leave wages paid for the quarter, but such wages considered shall not exceed:

$511/day (or portion of day) per employee if leave is for reasons 1 through 3 of the uses of emergency paid leave described above; or
$200/day (or portion of day) per employee if leave is for any other qualified sick leave wages.

There are other limitations and refundability provisions implemented in the Act. Employers should contact one of Gislason & Hunter LLP’s tax attorneys or their accountant for further information.

Additional Resources

The DOL will be developing model notices to be displayed at employers’ workplaces outlining employee’s rights under the above-described acts. Employers are encouraged to check the DOL’s website for updates on availability of notice posters. Employers should also consider the following resources, during this time:

Minnesota Unemployment Questions Surrounding COVID-19: https://www.uimn.org/applicants/needtoknow/news-updates/covid-19.jsp
Iowa Unemployment Questions Surrounding COVID-19: https://www.iowaworkforcedevelopment.gov/updates-and-resources-about-covid-19
OSHA – Guidance on Preparing Workplaces for COVID-19: https://www.osha.gov/
Center for Disease Control and Prevention (CDC) – Interim Guidance for Businesses and Employers: Plan, Prepare and Respond to Coronavirus Disease 2019: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

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