COVID-19 Employment Law Round-Up
FFCRA Employment Provisions: The Families First Coronavirus Response Act (“FFCRA”) becomes effective April 1, 2020. The new legislation affords paid time off for employees in certain circumstances arising from the impacts of COVID-19. Generally speaking, the Emergency Family and Medical Leave Expansion Act (“EFML”) allows up to twelve weeks of leave (ten weeks paid at two-thirds of the employee’s regular pay rate) where an employee is unable to work or telework due to the need to care for a child under eighteen years old because the child’s school is closed or the [regularly paid] child care provider is unavailable due to the COVID-19 public health emergency. The Emergency Paid Sick Leave Act (“EPSL”) provides up to 80 hours of paid leave to full-time employees (full pay or two-thirds of the regular rate depending on the reason leave is taken) for several enumerated reasons related to the pandemic. With respect to healthcare industry employers in particular, the statutory language raised significant issues regarding coverage under the FFRCA provisions.
Both the EFML and EPSL include an exception relevant to the healthcare industry: “An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application” of the amendments.
Many concerns arose under such language, including that certain employees who play a critical role in a healthcare facility would have be allowed to take the leave under the new law, whereas others would not. Further, the definition of “healthcare provider,” incorporated by reference from the original FMLA provisions, seemed particularly unsuited to the current purpose and did not have the effect of excluding from paid leave coverage crucial staff such as, by way of example, registered nurses and respiratory therapists. On Saturday, March 28th, the Department of Labor added to its “Q&A” Guidance addressing these concerns.
Regarding who may be considered a healthcare provider who may be excluded by their employer from paid sick leave and/or expanded family and medical leave, the DOL explained that for the purposes of employees who may be exempted, a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. The definition further includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities to provide services or to maintain the operation of the facility, as well as anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. Finally, the definition includes any individual that the highest official of a state determines is a health care provider necessary for that state’s response to COVID-19.
Thus, according to DOL, anyone who works in one of the enumerated types of facilities can be excluded from receiving paid leave under the FFCRA. However, the exclusions do not appear to be automatic. Rather, the language of the statute and the Guidance suggest that the employer must do something: “elect to exclude” individuals from coverage of the paid leave provisions.
The DOL “Q&A Guidance” is not “law,” but does signal the position the DOL is likely to take in its anticipated regulations. Even so, it remains possible for litigants to challenge the regulatory language as outside of the scope of DOL’s rulemaking authority, since the definition is a substantial departure from the wording included by Congress in the statute.
I-9 Requirements: On March 20, 2020, the Department of Homeland Security announced that it would exercise discretion to defer the physical presence requirements associated with completion of Form I-9. Employers who are exercising physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. Employers must inspect the Section 2 document remotely, and obtain, inspect, and retain copies of the documents within three business days and take further action once normal operations resume. Importantly, the exception applies only to employers that are operating remotely; if there are employees physically present at a work location, no exceptions have been implemented for in-person verification. However, if newly hired employees or existing employees are subject to a COVID-19 quarantine or lockdown protocols, DHS will evaluate the situation on a case by case basis.
Wage & Hour Implications: The COVID-19 crisis raises concerns under state and federal wage and hour law. On March 9, 2020, the Department of Labor issued guidance for employers regarding issues arising under the Fair Labor Standards Act. Specifically, the DOL confirmed, among other things: (1) employers do not have to pay non-exempt employees for hours they do not work; (2) salaried, exempt employees must receive their full salary in any workweek in which they perform any work (subject to limited exceptions); (3) employers may require exempt employees to utilize available paid time off for absences occasioned by office closures due to COVD-19 or related reasons; and (4) unless otherwise limited contractually, employers can require employees to perform work outside of their regular job description. Louisiana law requires an employer to pay a terminated employee all sums due within fifteen days of termination or by the next regular payday, whichever occurs first. Failure to do so triggers potential penalty wages and attorney’s fees should the employee file a lawsuit.
OSHA Concerns: Many employers, especially those in the healthcare industry experiencing an “all hands on deck” situation, are pondering whether they can terminate an employee who refuses to come to work for fear of contracting COVID-19. Of course, terminating an employee who raises concerns of workplace safety implicates OSHA and in particular, the OSHA retaliation provisions. However, to establish an OSHA retaliation claim arising from an adverse action taken because of an employee’s refusal to work, the employee would have to show “imminent danger.” That is defined as “any conditions or practices in a place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated…”. (29 U.S.C.§ 662(a)) This is a high standard for a healthcare employee to meet in the wake of a pandemic, and OSHA has issued general COVID-19 guidance and interim guidance for healthcare employers. If healthcare entities follow protocols set forth by the Centers for Disease Control and OSHA guidance, they should have valid defenses against an argument that employees reasonably believed they were in imminent danger such that a refusal to work was reasonable. One possible caveat concerns the elderly and individuals with serious underlying medical conditions. Because the CDC considers them higher risk, employers should consider implications associated with termination and whether exceptions are warranted on a case by case basis.
WARN Reminder: Following restrictions aimed at stopping the spread of COVID-19, many employers are being forced to reduce staff significantly, while some are being forced to close altogether. Such events implicate the Worker Adjustment and Retraining Notification Act (“WARN”). WARN requires covered employers to provide notice of employment termination sixty days prior to the date of a “plant closure” or a “mass layoff.” A plant closure occurs when the employer closes a single site of employment and the closure results in a loss at that site of fifty or more employees during any thirty day period. A mass layoff is a reduction in force resulting in an employment loss at a single site of at least 33% of the full-time employees as long as at least 50 employees are affected.
Notice must be given to the employee or his representative, the state dislocated worker unit, and the chief elected official of the local government where the loss occurs. While notice as soon as practicable will still be required, employers may be relieved of the obligation to provide a full sixty-day notice where either of two exceptions are triggered: (1) the faltering company exception (applies to closures only) or (2) the unforeseeable business circumstances exception. To invoke the faltering company exception, employers must demonstrate that they were actively seeking capital or business, that there was a realistic opportunity to obtain the financing or business, that such would have been sufficient, if obtained, to avoid or postpone a shutdown, and that notice under WARN would have precluded the employer from obtaining the needed capital or business. To establish the second exception, unforeseeable business circumstances, employers must show that the shutdown or mass layoff was caused by a sudden, drastic, and unexpected action outside of their control. The interpreting regulations cite non-exclusive examples to include an unanticipated and dramatic economic downturn or a government-ordered closing.
Unemployment Compensation: The employment provisions of the CARES Act include unemployment enhancements which are presently scheduled to sunset on December 31, 2020. The Act provides that covered individuals include employees who “self-certify” that they are able to work and are available to work but are unemployed (or working fewer hours) because they: (1) have been diagnosed with COVID-19 or are experiencing symptoms and seeking diagnosis; (2) are part of the household of an individual who has been diagnosed with COVID-19; (3) are providing care for a family or household member who has been diagnosed; (4) are primary caregiver for a child or other person in the household who is unable to attend school or another facility as a result of COVID-19; (5) are unable to reach the place of employment due to quarantine; (6) are unable to work because a healthcare provider has advised to self-quarantine due to COVID-19 concerns; (7) were scheduled to begin employment but not working because of an inability to reach the job as a result of COVID-19; (8) have become the source of major support for a household because the head of household died as a result of COVID-19; (9) quit employment as a direct result of COVID-19; or (10) their place of employment is closed due to COVID-19. The broad language and self-certification provision, together with enhanced benefits (an additional weekly amount of $600), and no waiting period will no doubt lead to an increase in resignations and unemployment claims.