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New CDC Guidance Makes Contact Tracing More Difficult for Employers

October 27 - Posted at 2:38 PM Tagged: , , , , ,

Employers will have to revise their COVID-19-related safety policies and practices to meet new guidelines from the U.S. Centers for Disease Control and Prevention (CDC) on what it means to have been in “close contact” with an infected person.

Under prior guidance, the CDC defined a close contact as someone who spent at least 15 consecutive minutes within six feet of an infected person, thus putting the individual at higher risk of contracting the virus.

The CDC updated its guidance to define a close contact as:

Someone who was within six feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from two days before illness onset (or, for asymptomatic patients, two days prior to test specimen collection) until the time the patient is isolated.

“We are now looking at cumulative rather than consecutive,” said Jonathan A. Segal, an attorney with Duane Morris in Philadelphia. So a person who was exposed three times in a 24-hour period—for five minutes during each encounter—would meet the definition.

“This broader definition most likely will have a big impact on schools, hospitals and workplaces where individuals have several separate interactions with others—totaling 15 minutes or more—over the course of a day,” said Catherine Burgett, an attorney with Frost Brown Todd in Columbus, Ohio.

What should employers do in light of the new guidelines? “Revise your current policies and forms based on the new definition of close contact and … wear a mask,” Burgett said.

Taking Action

An important consequence of this revision is the impact it will have on employers’ ability to maintain staffing because it establishes a much lower threshold trigger for required quarantine.

Employers should have infected employees identify others who worked within six feet of them, for 15 minutes or more, within the 48 hours prior to the sick individual showing symptoms. This is being called this the “6-15-48 analysis.”

This new guidance will make contact tracing using the CDC’s 6-15-48 analysis even more difficult. When determining whether an employee has been exposed to an infected worker for 15 minutes or more, employers will now need to look at brief interactions between employees and infected workers that may occur several times a day, instead of one or two prolonged exposures.

The CDC advises most employers to send home any employees who have had a risk of exposure under this analysis. Those employees should maintain social distancing and self-monitor for 14 days from the exposure.

All industries will be impacted, but the most significant impact will be to those businesses that are not considered to be critical infrastructure workplaces. Those businesses will find that more employees will be required to be quarantined under this new rule, and thus will have fewer employees available to work in their facilities.

If a business is considered essential, however, CDC guidelines say exposed employees can continue to work onsite while self-monitoring and wearing a face mask. Employers that are considered critical infrastructure will be less impacted, because even their directly exposed employees can still work, as long as they are asymptomatic and the company takes the steps required by the CDC.

Revising Policies

As a result of the new definition of close contact, employers should review their COVID-19-related infection-control plans with this new definition in mind and, at a minimum, update their contact-tracing questionnaires.

Instead of simply asking infected workers who they were near for a prolonged period of time, employers may want to view surveillance video, documents that show when an employee clocked in and out, and other items that will help determine workers’ interactions.

Employers may also want to consider obtaining a waiver from the infected worker in order to share his or her diagnosis. This will allow the employer to interview employees about their interactions with the worker to determine who was exposed to the infected individual.

4 Common COVID-19 Misunderstandings That Could Place Your Company At Legal Risk

August 23 - Posted at 12:23 PM Tagged: , , , , , , , , ,

Throughout the COVID-19 pandemic, the Centers for Disease Control and Prevention has issued constantly changing guidance for employers that many view as complex, confusing, and impractical. In its perplexing web of guidelines, the CDC recommends that companies take several actions to protect workers from contracting COVID-19, like self-isolating sick employees, quarantining exposed employees, screening employees for symptoms prior to work, and installing partitions to protect public-facing employees.

Given their complexity, some of these directives are often not fully understood by companies. Further complicating matters, many of the recommendations have never been previously undertaken by employers, leading to misapplication. Worst of all, other guidelines are simply not feasible for some employers, leaving them with the tough decision of not following the CDC directive in order to stay in business.

Unfortunately, ignoring or misunderstanding these confusing guidelines, like the four commonly misinterpreted guidance listed below, could lead to legal risks for your company.

1. Returning Exposed Employees To Work Too Early After A Negative Test

Of the innumerable companies that have sought our assistance during the COVID-19 pandemic, the most common misunderstanding of CDC guidance we see involves returning to work employees who have been directly exposed to COVID-19 too early following a negative test. Employers falling under the CDC’s general business guidance (not critical infrastructure employers) should quarantine employees for 14 days since their last direct exposure to a confirmed or suspected COVID-19 case, defined as being within 6 feet of the infected person, for 15 minutes or more, within the 48 hours prior to the sick individual showing symptoms, until the infected person is released from self-isolation (“6-15-48”).

Critically, the 14-day quarantine period cannot be cut short by a negative test due to the lengthy incubation period of COVID-19. This is an often-misunderstood CDC guideline, which even the agency has recognized:

Note that recommendations for discontinuing isolation in persons known to be infected with SARS-CoV-2 could, in some circumstances, appear to conflict with recommendations on when to discontinue quarantine for persons known to have been exposed to SARS-CoV-2. CDC recommends 14 days of quarantine after exposure based on the time it takes to develop illness if infected. Thus, it is possible that a person known to be infected could leave isolation earlier than a person who is quarantined because of the possibility they are infected.

Thus, an exposed employee cannot return to work during the 14-day quarantine period following a negative COVID-19 test received on, for example, day three, seven, or 12 of that period. Returning exposed employees too early due to a negative test could lead to preventable COVID-19 infections if co-workers are exposed to individuals who should be quarantined and develop the virus after a negative test.

2. Miscalculating The Appropriate Quarantine Period For Those Exposed To An Infected Household Member

Along those same lines, employers often misunderstand CDC guidance when calculating the length of the quarantine period for a worker who has been exposed to an infected spouse or household member. The key here is that the 14-day quarantine period does not begin until the last day the employee was directly exposed, using the 6-15-48 analysis above, to the spouse or household member prior to the infected person being released from self-isolation. Thus, if the employee is directly exposed to the spouse or household member on days one through 10, the quarantine period does not begin until day 10.

Accordingly, the worker may ultimately miss 24 days of work, instead of 14, if directly exposed to the spouse or household member every day until the spouse is released from self-isolation. The CDC addresses this confusing guidance here, noting that the exposed employee should stay home until 14 days have elapsed after the last exposure.

3. Not Notifying Employees Of A Confirmed COVID-19 Case In Your Workplace

The Fisher Phillips COVID-19 litigation tracker has been following closely the number of lawsuits filed with COVID-19-related claims. The prevalence of claims relating to an employer’s failure to notify employees of a confirmed case of COVID-19 in the workplace is a troubling trend. Throughout the pandemic, transparency by employers has been a critical tool in maintaining positive employee morale. Failure to do so can lead to negative consequences, including not only lawsuits, but Occupational Safety and Health Administration (OSHA) complaints and employees refusing to work, as well.

Although it may not be clear to some employers, the CDC recommends not only informing directly exposed employees (6-15-48) of a confirmed COVID-19 case in the workplace, but also to inform other “employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA).” The CDC defines “possible exposure” to COVID-19 as those who do not meet the 6-15-48 parameters. Thus, when a confirmed COVID-19 case occurs in your workplace, remember to inform those employees who worked near the infected worker (e.g., the same hallway, area, or corridor), even though they weren’t directly exposed.

4. Incorrectly Believing That Wearing Face Coverings Trumps The 6-15-48 Analysis

When analyzing whether an employee has been exposed to an infected co-worker, employers often misconstrue the impact of wearing face coverings to prevent the spread of the virus. Although the CDC recommends wearing masks to slow the spread of COVID-19, whether employees are wearing masks while directly exposed (6-15-48) to an infected person does not change that analysis. The determination of whether someone should be quarantined for 14 days does not change if the individuals at issue are wearing masks, another point of confusion specifically clarified by the CDC:

Note: This is irrespective of whether the person with COVID-19 or the contact was wearing a mask or whether the contact was wearing respiratory personal protective equipment (PPE).

To ensure the safety of your workers, remember to quarantine all employees who meet the 6-15-48 analysis, even if they were wearing a face covering while exposed.

Legal Risks For Not Following CDC Guidelines

Although CDC guidance is not a law or regulation, such guidelines can be construed by OSHA and the courts as the legal standard that defines what actions a company should take to protect its workers during this unprecedented time. In fact, the Assistant Secretary for the U.S. Department of Labor has already indicated that OSHA could rely upon the general duty clause, which the agency can enforce in the absence of a standard on point, to enforce the CDC’s guidelines for employers on COVID-19.

If your company fails to follow a CDC guideline, it could receive a citation under OSHA’s general duty clause and, if classified as willful (e.g., reckless disregard for, or deliberate indifference towards, employee safety), the maximum penalty for each citation would be $134,937. Keep in mind that state OSHA plans, not regulated by the federal government, can adopt emergency COVID-19 regulations, which have the same impact as any other OSHA regulation, and enforce those against employers who fail to comply with them. Virginia recently became the first state adopt such a regulation, which includes notification requirements that vary from those of the CDC.

Although it is an evolving area of the law, claimants’ counsel will argue to courts that the violation of a CDC guideline is evidence of negligence, willfulness, or intent on behalf of the employer. Plaintiffs’ counsel will assert that the CDC guideline has established the level of care or duty owed to an employee or other claimant, and that the duty was breached by the company.

This argument will be made regardless of the jurisdiction, venue, or type of claim, including workers’ compensation claims, claims filed directly by an employee seeking recovery above and beyond workers’ compensation benefits, and those filed by third-parties (e.g. visitors, employee spouses) against companies. To protect your company from such claims, remember to follow these steps to minimize your exposure.

Notice & Documentation Requirements Under the New Paid Sick and FMLA Leave Law

April 22 - Posted at 2:00 PM Tagged: , , , , , , , , , , ,
Many employers have multiple questions on the requirements for documentation on the new paid leave programs available under the FFCRA, so we have summarized them here for you.
 
Now that you have the ever-changing jist of how the Emergency Paid Sick Leave and Expanded FMLA work, we need to make certain you obtain the correct documentation to ensure you can claim the tax credit.
 

Proper Timing for Requesting Leave

For employees that need to take leave due to school/childcare closures, where the leave is foreseeable, they must provide notice as soon as practical.

When leave is for any other reason, employers can only require notice after the first workday the employee is on leave.   KEEP IN MIND – notice from an employee’s spokesperson, such as a family member, must be accepted if the employee is unable to provide notice personally.
 
What information do you need to collect?
  1. Employees name
  2. Date of leave request
  3. Qualifying reason, and
  4. Oral or written statement that the employee is unable to work due to qualifying reason
Although oral notice is sufficient, you may wish to consider using a leave request form to maximize compliance.
 

What documentation must employee provide to prove need for leave?  

It will depend on the reason for the leave:
  • Employee subject to a federal, state or local quarantine or isolation order related to COVID-19: the name of the governmental entity that issued the Order
  • A health care provider advises an employee to self-quarantine: the name of the health care provider who advised the employee to self-quarantine.
  • Employee caring for an individual subject to a quarantine order or been advised by a health care provider to self-quarantine: either the name of the governmental entity that issued the Order to which the individual being cared for is subject, OR, the name of the health care provider who advised the self-quarantine.
If an employee has requested leave to care for a child whose school is closed or childcare is unavailable:
  • Employee must provide the name of the child, name of the school, place of care or child care provider that has become unavailable (keep in mind this could be family or a friend), and a representation that “no other suitable person will be caring for the child during the period the employee is taking leave

FFCRA Documentation and Record Keeping: What Employers Need to Know

April 06 - Posted at 1:31 PM Tagged: , , , , , , , , , ,
The close of March and open of April 2020 brought in both Q2 of 2020 and some updated guidance from the U.S. Department of Labor (DOL) and the U.S. Internal Revenue Service (IRS) on the documentation needed for leaves under the Families First Coronavirus Response Act (FFCRA). The DOL’s Regulations, called a temporary rule, include substantial guidance related to the information an employer should (and in some cases must) obtain from an employee requesting leave. The DOL updated its FFCRA Questions and Answers (DOL Q&As) as well in conjunction with its Regulations.

When read in conjunction with the FAQs published by the IRS on March 31, 2020 (“IRS FAQs”) regarding the employer tax credits associated with paid FFCRA leave, the DOL’s Regulations answer some questions, but leave others unanswered. Somewhat surprisingly, the Regulations do not mention specific documentation for certain types of leave available under FFCRA, such as a copy of the doctor’s order or advice to quarantine or isolate. Any records that are required must be retained by the employer for a period of four years. 

Records Related to Small Employer Exemption

If a small employer decides to deny emergency paid sick leave or expanded family and medical leave to an employee whose child’s school or place of care is closed, or whose childcare provider is unavailable (which is the only type of leave a small employer can deny), the employer must document the basis for the exception. 

Although the employer should not send this documentation to the DOL, it should retain such records for its own files.

Information Supporting Reasons for Leave

The Regulations require that employees requesting leave provide their employers a “signed statement,” in addition to the documentation (and information) noted below, which must contain the following: (1) the employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason. The Regulations also outline what an employee must provide his or her employer for each qualifying reason for leave. The information required for each qualifying reason is summarized below.
 
  • Leave because of a federal, state, or local quarantine or isolation order related to COVID-19. The employee must supply the employer with the name of the government entity that issued the order.
  • Leave because a health care provider advised the employee to quarantine or self-isolate due to concerns related to COVID-19. The employee must supply the employer with the “name of the health care provider who advised” the employee to quarantine or self-isolate due to concerns related to COVID-19. Note that these “concerns” are limited to three COVID-19-related situations:  (1) the employee has COVID-19; (2) the employee may have COVID-19; or (3) the employee is particularly vulnerable to COVID-19. Although the Regulations do not state it is required, employers may want to at least include these situations on their request forms to show that the leave is being requested – and provided – for a covered reason.
  • Leave because the employee is caring for an individual who is subject to an order by a federal, state, or local official to quarantine or self-isolate or who has been advised by a health care provider to quarantine or self-isolate due to concerns related to COVID-19. The “individual” to whom the employee is providing care must be an employee’s immediate family member, a person who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she were quarantined or self-isolated. For this type of leave, ‘‘individual’’ does not include persons with whom the employee has no personal relationship. Although not specifically required by the Regulations, this detailed definition implies the need to request information regarding the relationship, and the collection of such information is supported by the IRS FAQs. As with similar leaves for the employee’s own circumstances, the employee must supply the employer with the name of the governmental official or entity that issued the quarantine or isolation order or the name of the health care provider who advised the individual for whom the employee is caring to self-quarantine due to concerns related to COVID-19. If the leave relates to advice from a health care provider, the same limited “concerns” noted above also apply to this form of leave, and employers may want – at a minimum – to include that list on their request forms to show that the leave is being requested for a covered reason.
  • Leave because the employee is caring for his/her son or daughter whose school, place of care or childcare provider has been closed, or the childcare provider of such son or daughter is unavailable, for reasons related to COVID-19. An employee must supply the employer with (1) the name of the son or daughter for whom the employee is caring; (2) the name of the school, place of care or childcare provider that has closed or become unavailable; and, (3) a representation that no other suitable person will be caring for the child during the leave.
    • NOTE: The answer to IRS FAQ No.44 notes that, in order to receive a tax credit for the paid sick leave or expanded family and medical leave for this reason, if the child is older than 14 and the leave is during daylight hours, the employee must provide a statement that special circumstances exist requiring the employee to provide care.
The Regulations do not list any additional information required for the purpose of a leave taken because the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

The Regulations state that employers may not require documentation beyond what is allowed for by the Regulations. In addition to the information specified above, the Regulations state generally, that employers may also request additional information or documentation needed to support a request for tax credits pursuant to the FFCRA. According to the IRS, employers are not required to provide leave if employees requesting leave fail to provide “materials sufficient to support the applicable tax credit.” Taken together, the Regulations and the IRS FAQs suggest that employers can require the information specifically listed under the FCCRA Regulations and any specific information that the IRS requires for a tax credit (such as the information noted above concerning children older than 14). Requiring anything beyond those categories potentially violates the FFCRA.

Notably, if an employee fails to provide the required information or documentation, the employer must provide that employee an opportunity to correct the error and provide the required documentation before denying the request for leave.

What Employers Need to Keep (and for How Long)

An employer is required to retain all documentation provided to support the need for leave for four years, regardless of whether leave was granted or denied. If an employee provided oral statements to support his or her request for paid sick leave or expanded family and medical leave, the employer is required to document and retain such information for four years also. Similarly, if an employer denies an employee’s request for leave pursuant to the small business exemption, the employer must document its authorized officer’s determination that the criteria for that exemption are satisfied and retain such documentation for four years.

The Regulations and the IRS FAQs also explain what documents the employer should create and retain to support its claim for tax credits from the IRS. Employers must maintain the following records for at least four years: 
 
  1. Documentation to show how the employer determined the amount of emergency paid sick leave and expanded family and medical leave paid to employees that are eligible for the credit, including “records of work, telework and qualified sick leave and qualified family leave;”
  2. Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages;
  3. Copies of any completed IRS Forms 7200 that the employer submitted to the IRS;
  4. Copies of the completed IRS Forms 941 that the employer submitted to the IRS or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third party payer regarding the employer’s entitlement to the credit claimed on IRS Form 941; and
  5. Other documents needed to support its request for tax credits pursuant to IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit.
Although the DOL’s Regulations and the IRS’s FAQs appear to be in agreement regarding the documentation needed to support an employer’s claim for tax credits from the IRS, we expect more detail from the IRS on this topic in the near future. We hope the additional detail from the IRS provides more clarity on categories 1, 2, and 5 of the records that need to be retained by employers. A more detailed explanation of how employers may claim tax credits, and what information will be needed, can be found at https://www.irs.gov/forms-pubs/about-form-7200 and https://www.irs.gov/pub/irs-drop/n-20-21.pdf.

We continue to monitor future guidance from the DOL and IRS and other legislation that may affect employers during this challenging time. 

Employer Step By Step Guide to FFCRA Related Tax Credits for Paid Leave

April 03 - Posted at 9:00 AM Tagged: , , , ,
The IRS has provided  an initial guidance document to assist small- and medium-sized companies with the process of defraying the costs of paid sick leave required under the  Families First Coronavirus Response Act (FFCRA). The IRS also provided some guidance regarding what information you should receive from an employee in order to substantiate eligibility for the FFCRA tax credits.  

There is good news and bad news for employers struggling to keep up with the rapidly developing and somewhat-complex procedures. The good news is that you now have much-needed clarity on the “IRS forms and information” that the DOL referenced when it indicated that  certification questions would soon be answered. Fisher Phillips LLP has summarized below the required documentation required in each situation and the recommended written support you should request from your employees. 


The bad news is that the IRS guidance raises several additional questions that will need to be further clarified. For example, the IRS guidance provides that employers should receive a written request from the employee that contains, among other things, a “statement of the COVID-19 related reason the employee is requesting leave and written support for such reason.” But the IRS guidance does not specify what “written support” the employer may ask for. And because the FFCRA does not expressly provide that you may request certification (including doctor’s notes), it is still unclear whether and in what circumstances you may permissibly ask for doctor’s notes or similar information for some of the qualifying types of leave. 

For this reason, we recommend that you indicate on any certification forms you distribute that “ additional documentation may be required ” in the event further clarity is achieved and it becomes apparent that more “written support” is needed.

Documentation For Various Leave Situations

Below is the best information available to date (4/2/2020) that has been used to develop the following employer’s guide for navigating the tax credit process.
In order to qualify for the federal tax credit for providing the emergency paid leave, you will need to obtain a written request for the Emergency Paid Sick Leave or Emergency FMLA leave. In all leave situations, you should ensure you retain the following pieces of documentation:
  • Documentation to show how you determine the amount of qualified sick and family leave wages you paid to each employee, including records of work, telework, and qualified family leave;
  • Documentation to show how you determine the amount of qualified health plan expenses that the employer allocated to wages (see FAQ 31 through 36 on the IRS Guidance entitled “Determining the Amount of Allocable Qualified Health Plan Expenses” for methods to compute this allocation);
  • Copies of any completed Forms 7200 Advance of Employer Credits Due to COVID-19 that you submit to the IRS; and
  • Copies of the completed Forms 941, Employer’s Quarterly Federal Tax Return, that you submit to the IRS. If you use third-party payers to meet your employment tax obligations, you should retain the records of information you provide them regarding your entitlement to the credit claimed on Form 941.
With respect to individual leave situations, you should ensure you retain the following pieces of documentation:

A. Reason For Leave- Quarantine or Isolation Order

Employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.

Required Documentation:
  • Employee’s name
  • Date(s) the leave is requested
  • A statement of the COVID-19 related reason the employee is requesting leave and “written support” for such reason
  • A statement that the employee is unable to work or telework due to a COVID-19 related reason; and
  • The name of the government entity ordering the quarantine.

“Written Support” That Can Be Requested
It appears that the required “written support” could be met simply by obtaining the required documentation per the IRS guidelines. You could ask an employee for or otherwise locate a copy of the quarantine or isolation order. This may ultimately depend on  the U.S. Department of Labor’s final interpretation regarding whether a state or local shutdown order satisfies this qualifying reason. If so, then you should likely be able to locate the documentation. If not, and USDOL interprets this only to cover an individual quarantine or isolation order, then the employee would have to provide it to you as you would not have access to it.


B. Reason For Leave- Advised by Doctor to Self-Quarantine

Employee has been advised by a health care provider to self-quarantine due to COVID-19 concerns.

Required Documentation:
  • Employee’s name
  • Date(s) the leave is requested
  • A statement of the COVID-19 related reason the employee is requesting leave and “written support” for such reason
  • A statement that the employee is unable to work or telework due to a COVID-19 related reason; and
  • The name of the health care professional advising self-quarantine.

“Written Support” That Can Be Requested
It appears that the required “written support” could be met simply by obtaining the required documentation per the IRS guidelines, which includes a statement from the employee including the name of entity issuing/advising of quarantine. Note that it may be impractical or even contrary to local or state order to request a doctor’s note in such situations. 

C. Reason For Leave- Has Symptoms and Seeking Medical Advice

Employee is experiencing COVID-19 symptoms and seeking medical diagnosis.

Required Documentation:
  • Employee’s name
  • Date(s) the leave is requested
  • A statement of the COVID-19 related reason the employee is requesting leave and “written support” for such reason; and
  • A statement that the employee is unable to work or telework due to a COVID-19 related reason.

“Written Support” That Can Be Requested
You should be able to ask the employee for the name of the health care professional or health care provider that they are seeking a medical diagnosis from as this is required by the IRS guidelines for other emergency leave reasons. Note that it may be impractical or even contrary to local or state order to request a doctor’s note in such situations. 

D. Reason For Leave- Employee Caring for Person Under Quarantine/Isolation Orders

Employee is caring for an individual subject to a federal, state, or local quarantine or isolation order, or advised by a health care provider to self-quarantine due to COVID-19 concerns.

Required Documentation:
  • Employee’s name
  • Name of the person subject to quarantine or advised to self-quarantine
  • Relation of the person subject to quarantine or advised to self-quarantine
  • Date(s) the leave is requested
  • A statement of the COVID-19 related reason the employee is requesting leave and “written support” for such reason
  • A statement that the employee is unable to work or telework due to a COVID-19 related reason; and
  • The name of the government entity ordering the quarantine or the name of the health care professional advising self-quarantine.

“Written Support” That Can Be Requested
It appears that the required “written support” could be met simply by obtaining the required documentation per the IRS guidelines. You could ask an employee for or otherwise locate a copy of the quarantine or isolation order. This may ultimately depend on  the U.S. Department of Labor’s final interpretation regarding whether a state or local shutdown order satisfies this qualifying reason. If so, then you should likely be able to locate the documentation. If not, and USDOL interprets this only to cover an individual quarantine or isolation order, then the employee would have to provide it to you as you would not have access to it.

E. Reason For Leave- Caring for Child if School/Daycare is Closed

Employee is caring for their child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency.

Required Documentation:
  • Employee’s name
  • Name and age of the child/children
  • Name of the school that has closed or place of care that is unavailable
  • Date(s) the leave is requested
  • A statement of the COVID-19 related reason the employee is requesting leave and “written support” for such reason. The “written support” should include:
    • A statement that the employee is unable to work or telework due to a COVID-19 related reason;
    • Representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave; and
  • If the child is older than 14 and needs care during daylight hours, a statement that special circumstances exist requiring the employee to provide care.

“Written Support” That Can Be Requested
The USDOL has stated that you can require workers to provide additional documentation in support of EFMLA taken to care for a child or children whose school or place of care is closed, or child care is unavailable, due to COVID-19 related reasons. This could include:
  • Notice of closures or unavailability from a school, place of care, or child care provider;
  • A notice of closure or unavailability posted on a government, school, or day care website;
  • A notice of closure or unavailability published in a newspaper; and
  • A notice of closure or unavailability emailed from an employee or official of the school, place of care, or child care provider.

F. Reason For Leave- Other

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.

Required Documentation:
  • Employee’s name
  • Date(s) the leave is requested
  • A statement of the COVID-19 related reason the employee is requesting leave and “written support” for such reason; and
  • A statement that the employee is unable to work or telework due to a COVID-19 related reason.

“Written Support” That Can Be Requested
To be determined on a case-by-case basis. 


Maintenance Of Records
You should maintain all records noted above for at least four years after the date the tax becomes due or is paid, whichever is later.

New Change from DOL on FFCRA

April 01 - Posted at 9:00 AM Tagged: , , , , , , , ,
The Department of Labor issued this afternoon “temporary regulations” to assist with interpreting and complying the Families First Coronavirus Relief Act (FFCRA), which provides for paid sick leave and expanded FMLA leave.  The text of the regulations can be found here
 
Two significant portions of the regulations stand out at first glance:

 
Item #1- 

The “stay at home” orders are now considered “quarantine or isolation orders” under the FFCRA.  The DOL provides the following guidance (located on p. 88 of the PDF at the above link): 
 
“For the purposes of the EPSLA [the portion of the FFCRA that provides for 80 hours of paid sick leave], a quarantine or isolation order includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the Employee to be unable to work even though his or her Employer has work that the Employee could perform but for the order. This also includes when a Federal, State, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of Employees to be unable to work even though their Employers have work for them.”
 

Item #2- 

The DOL has provided guidance as to which smaller employers will be exempt from the paid sick leave and expanded FMLA provisions.  
The following is from p. 103:  
 
“Exemption from requirement to provide leave under the EPSLA Section 5102(a)(5) and the EFMLEA for Employers with fewer than 50 Employees. (1) An Employer, including a religious or nonprofit organization, with fewer than 50 Employees (small business) is exempt from providing Paid Sick Leave under the EPSLA and Expanded Family and Medical Leave under the EFMLEA when the imposition of such requirements would jeopardize the viability of the business as a going concern. A small business under this section is entitled to this exemption if an authorized officer of the business has determined that: (i) The leave requested under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity; (ii) The absence of the Employee or Employees requesting leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or (iii) There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the Employee or Employees requesting leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA, and these labor or services are needed for the small business to operate at a minimal capacity.”
 
 
Since the State of Florida has been put under at Stay at Home Executive Order, the following will now apply:
  • Employees with an “essential business” will still report to work as normal
  • Employees with a “non-essential business” will now qualify for the 80 hour Emergency Paid Sick Leave under FCCRA.
Two items to bring to your attention today:

1. Latest COVID-19 relief bill was passed by Senate last  night. This bill was passed to help funnel funds into the US economy to assist workers and businesses survive the pandemic. The bill has not yet passed the House or been signed by the President. We are working on a summary of key points and will get those out once it’s though the house.

2. FFCRA Poster- The DOL published a Families First    Coronavirus Response Act notice you are required to post. You can download the poster here. 
 
When sharing electronically with staff, you may wish to remind them that it does not currently appear that county-required “stay at home” requirements qualify as a “quarantine or isolation order”. 
 
 Below we condensed and included some of the questions & answers the DOL provided regarding the posting.  Call us with any questions. 
 
Q. Where do I post this notice? If most of my workforce is teleworking, do I electronically “post” this notice?
 
Each covered employer must post a notice of the Families First Coronavirus Response Act (FFCRA) requirements in a conspicuous place on its premises. An employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.
 
Q. Do I have to post this notice in other languages that my employees speak? Where can I get the notice in other languages?
 
You are not required to post this notice in multiple languages, but the Department of Labor (Department) is working to translate it into other languages.
 
Q. Do I have to share this notice with recently laid-off individuals or new applicants?
 
No, the FFCRA requirements explained on this notice apply only to current employees, including new hires.
 
Q. I am a small business owner. Do I have to post this notice?
 
Yes. All employers covered by the paid sick leave and expanded family and medical leave provisions of the FFCRA (i.e., certain public sector employers and private sector employers with fewer than 500 employees) are required to post this notice.
 
Q. Our employees must report to our main office headquarters each morning and then go off to work at our different worksite locations.  Do we have to post this notice at all of our different worksite locations?
 
The notice needs to be displayed in a conspicuous place where employees can see it. If they are able to see it at the main office, it is not necessary to display the notice at your different worksite locations.

Q. Our company has many buildings. Our employees report directly to the building where they work, and there is no requirement that they first report to our main office prior to commencing work. Do I have to post this notice in each of our buildings?

Yes. Where an employer has employees reporting directly to work in several different buildings, the employer must post all required federal notices in each building, even if the buildings are located in the same general vicinity (e.g., in an industrial park or on a campus).

Stay At Home Orders & FFCRA Update

March 25 - Posted at 10:00 AM Tagged: , , , , , , ,
Many counties are issuing “stay at home” orders where only businesses deemed as “essential” can continue remain open. These lists of “essential” businesses are not uniform from county to county so you will need to check your county’s Emergency Executive Order to determine if your business would qualify as “essential” or not. We have a copy of the Orange County, Florida Executive Order that was signed yesterday (3/24/2020) and will continue to obtain copies from other counties as those are signed/passed.

If your business is deemed as “essential”, we also have sample letters you can provide to employees to use for travel. Please let us know if you need copies of these samples for use.

If your business qualifies as “essential”, push the fact that you are staying open as a positive. Make sure each employee understands that you are trying to keep them working and getting paid as long as you can so they can take care of their families. Under the Families First Coronavirus Response Act (FFCRA), the paid leave does not take effect until April 1st so anyone not working prior to 4/1 will not be eligible for payments under the FFCRA. 

Attached is an update to the presentation we sent out last week when the FFCRA was first passed with changes included.  You can access the updated presentation   here.

You may have heard the Senate stuck a deal late last night on an additional relief bill, but it still has not yet passed the House. More details on the provisions of this bill will be forthcoming once it is signed into law by the President.
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