07 Apr Coronavirus Resource Guide for Businesses
The recent spread of Coronavirus Disease 2019 (COVID-19) and its containment measures present a complex situation for both employers and employees. In the wake of critical changes in federal, state, and local laws in response to COVID-19, the attorneys at JJH Law are here to guide you through your experience. We’re here for you with practical and tailored counseling on the employment-related impacts of COVID-19.
Below, we’ve provided some answers to frequently asked questions (FAQs) to help you navigate the legal developments of the virus and what they mean for your employees and business.
Frequently Asked Questions (FAQs)
Are employers allowed to share the news of an employee’s COVID-19 actual or probable diagnosis?
Yes. The Centers for Disease Control and Prevention (CDC) says that employers should inform fellow employees of their potential workplace exposure. However, employers should warn only to the extent necessary to adequately inform the employees of their potential workplace exposure, while maintaining confidentiality (i.e., without revealing the infected individual’s name unless otherwise directed by the CDC, Oregon Occupational Safety & Health Administration (OSHA), or applicable public health authority.)
Likewise, to further warn employees, customers, vendors, and others with whom the employee may have come in contact with while working, the employer may communicate to non-exposed parties generally that there has been a potential COVID-19 exposure, without sharing additional identifying information.
In all cases, employers should refer to federal, state, or local health authorities for guidance and direction regarding the scope and content of any disclosures.
Are employers allowed to send home an employee involuntarily if he or she is exhibiting symptoms of COVID-19?
Yes, if done uniformly and in a manner that does not discriminate against any particular characteristics protected by law, such as age, national origin, race, etc. The CDC specifically advises that employees with symptoms of acute respiratory illness and a fever (greater than 100.4 degrees Fahrenheit or 37.8 degrees Celsius, using an oral thermometer) should stay home.
What if the employee is not exhibiting COVID-19 symptoms, but has been in close contact with someone who has COVID-19? Can the employer send that employee home or require the employee work from home?
Yes, if the asymptomatic employee fits within certain exposure risk categories established by the CDC and state and local public health authorities.
Can employers require asymptomatic employees with no known exposure to COVID-19 to telework for a certain period of time as preventive or precautionary measures?
Yes, and this may even be required if the employer is a “non-essential business.”
If a nonexempt worker is allowed to telework, what are some basic steps an employer should take?
Non-exempt employees must be compensated for all time spent working, and so it is imperative to:
- Implement a time and attendance policy which explains employee break and rest periods and overtime limitations.
- Direct employees to document all breaks and compensable time.
May employees use Emergency Paid Sick Leave (EPSL) intermittently?
No. An employer’s requirement to provide EPSL to an employee ceases with whichever comes earlier: the time when the employer has paid that employee for paid leave under this section for an equivalent of 80 hours of work, or upon the employee’s return to work after taking paid leave under this section.
May employees impacted by COVID-19 use leave under the Emergency Family Medical Leave Act (EFMLA)?
Possibly, yes. Found in the newly enacted Families First Coronavirus Response Act (FFCRA) is Emergency Family and Medical Leave (EFMLA), which provides eligible employees with the right to take up to 12 weeks of protected leave due to “a qualifying need related to a public health emergency.”
Under what circumstances may an employee utilize EFMLA leave?
EFMLA leave is limited to an “eligible employee” who is unable to work or telework due to the need to care for children under the age of 18 when school or place of care is closed, or childcare is unavailable due to a public health emergency, such as COVID-19.
“Eligible employees” are full-time or part-time employees who have been employed for at least 30 days prior to request for EFMLA.
If an employer previously laid off employees on or after March 1, 2020 due to COVID-19 and the employer re-hires those employees, do they have to wait an additional 30 days to be eligible for Emergency Family Medical Leave?
No. Employees who worked for at least 30 days and were laid off on or after March 1, 2020, do not need to wait an additional 30 days to apply for Emergency Family Medical Leave.
Are small employers exempted from EFMLA?
No, though there is a distinction for small employers’ liability. Though EFMLA applies to private-sector employers with 500 or fewer employees and public agencies of any size, the law also provides an exemption for small employers with less than 50 employees by protecting them from unpaid back pay and liquidated damages in the case of a FMLA related lawsuit.
May employees impacted by COVID-19 who are unable to work receive pay?
Possibly, yes. The first 10 days of EFMLA are unpaid, and then eligible employers must provide paid leave at no less than two-thirds of an employee’s regular rate of pay, to be capped at $200 per day and $10,000 in aggregate. Employers can also allow employees to use other time off benefits provided by the employer to supplement their wages if their compensation under EFMLA does not result in their full compensation.
In addition, found in the newly enacted Families First Coronavirus Response Act (FFCRA) is Emergency Paid Sick Leave (EPSL) which eligible employees may also request, as further explained below.
Eligible employees may also use Oregon Sick Leave, though employers can limit the use of Oregon Sick Leave until after 90 days of employment. Oregon Sick Leave applies to all employers in Oregon and is paid unless the employer has less than 10 employees in Oregon or 6 employees in Portland.
May an employer require its employees use other accrued leave such as Oregon Sick Leave or paid time off (PTO) before using EPSL?
No. If an eligible employee requests EPSL, paid leave under the EPSL is used before any other leave accruals are depleted. If an employee has exhausted EPSL, employers may allow employees to use other accrued time off provided by the employer, including Oregon Sick Leave.
Which employees are eligible to use EPSL?
EPSL provides employees paid sick time when unable to work, including remotely, because:
- The employee is subject to a federal, state, or local quarantine or isolation related to COVID-19
- The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis
- The employee is caring for an individual who is subject to one of the two reasons above
- The employee is caring for their son or daughter if the school or place of care has been closed, or the childcare provider is unavailable, due to COVID-19 precautions
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor
How much pay do employers have to pay their employees using EPSL?
Full-time employees receive up to 80 hours of paid leave. Part-time employees receive a number of hours equal to the number of hours that such an employee works, on average, over a two-week period.
For reasons 1, 2, 3 listed above with regard to employee eligibility, employers must pay employees at their regular rate of pay, which is capped at $511 per day and $5,110 in aggregate, and for reasons 4, 5, 6, employers must pay two-thirds of employee’s regular rate of pay, which is capped at $200 per day and $2,000 in the aggregate.
Has Oregon also expanded their family leave act, the Oregon Family Leave Act (OFLA) in response to COVID-19?
Yes. Effective March 18, 2020 through September 13, 2020, the Oregon Bureau of Labor and Industries (BOLI) has expanded the reach of OFLA in response to COVID-19. Employer and employee eligibility under the expanded OFLA remain unaffected: Covered employers have 25 or more employees in Oregon; and employees must have worked for a covered employer for 180 days, averaging 25 hours per week.
The OFLA expansion provides coverage for eligible employees needing to provide emergency care for their child whose school or place of care has been closed in conjunction with a public statewide health emergency, such as COVID-19.
What if an employer refused to pay its eligible employees in accordance with the EPSL requirements?
Employers that do not comply with the requirements of the EPSL will be treated as a “failure to pay minimum wage” under Fair Labor Standards Act (FLSA). Denying or interfering with protected leave may also result in additional violations and claims such as discrimination and retaliation.
What assistance do employers receive from the government in accordance with the EFMLA or EPSL?
The FFCRA provides refundable tax credit for each calendar quarter in an amount equal to 100 percent of the wages paid by employers for EFMLA or EPSL. For EFML, the amount of qualified family leave wages taken into account for each employee is capped at $200 per day and $10,000 for all calendar quarters. If the credit exceeds the employer’s total liability under section 3111(a) for all employees for any calendar quarter, the excess credit will be refunded to the employer.
For EPSL, a refundable tax credit for employers equal to 100 percent of qualified paid sick leave wages required to be paid by the EPSL that are paid by an employer for each calendar quarter. The tax credit is allowed against the tax imposed by section 3111(a) of the Internal Revenue Code (the employer portion of Social Security taxes).
What documentation may employers need to receive the tax credit under the EFMLA or EPSL?
Employees must support their leave requests with appropriate information, which includes the employee’s name, qualifying reason for leave, a statement that the employee is unable to work or telework for that reason, and the anticipated leave date. Employees must provide documentation supporting the absence, for example, this could be written documentation from a health care provider advising self-quarantine or a school’s posted notice of closure.
The regulations for EFMLA and EPSL recommend employers keep such documentation if the employer intends to seek tax credits for providing paid leave. Employers should additionally consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the process they will need to follow to claim the paid leave tax credit, including any necessary supporting documentation.
If a worksite closes, do employees utilizing EFMLA or EPSL leave continue to receive those benefits?
No. If the worksite closes, employees do not receive, or continue to receive, leave under the FFCRA. It does not matter whether: (1) the closure occurs before or after the FFCRA takes effect; (2) an employee is on EFMLA or EPSL leave when closure occurs; (3) an employer furloughs an employee; or (4) the worksite temporarily closes and the employer says it will reopen in the future. If this occurs, an employee’s only recourse will be to seek unemployment benefits.
For more information or advice tailored to your particular situation, we offer further tools and resources needed to effectively respond to this rapidly changing employment landscape.