Have you taken the “Florida Man challenge”? It’s a hoot. You type “Florida man” along with your birthdate to discover the head-scratching things Floridians have done on that date.
Telecommuting has become the coronavirus norm. The CDC recommends that employees who can work from home do so, and state Stay at Home orders are requiring telework whenever possible.
The larger questions, however, are whether COVID-19 will change our national outlook on the viability of telework, or when his crisis ends will businesses return to their pre-coronavirus telework hostility?
I hope it’s the former but I fear it’s the latter. And if it’s the latter, Tchankpa v. Ascena Retail Group, which the 6th Circuit decided in the midst of the growing coronavirus outbreak and just five days before the WHO declared a viral pandemic, gives us some insight into the future issues.
One of the more confounding sets of rules under the FFCRA is when employers can require employees to substitute an employer’s own provided leave (which, for the sake of convenience I’ll refer to throughout as “PTO”) for paid leave —the 80 hours of paid sick leave (“EPSL”) or the 12 weeks of expanded family and medical leave (“EFMLA”)—mandated by the Families First Coronavirus Response Act.
Today I am going to make an attempt to explain these rules, but I’ll fully admit that it’s still not 100 percent clear to me. The text of the FFCRA seems to suggest that an employer can never require the substitution of PTO. The DOL’s proposed regulations, however, muddy the waters, which were muddied even further by an amendment to those proposed regulations published last Friday, which deleted language from the regulations’ explanatory discussion relating to the substitution of PTO for EFMLA.
How are you filling your non-working time? We used to fill our time running our kids all over the place for various lessons, rehearsals, and gigs. Now, however, we have a lot of down-time, with nothing to do. So how am I filling my time when I’m not working? (Which, btw, I’ve been doing a lot of over the past month.)
Last night, the Center for Disease Control issued new guidelines for when an essential employer should permit a critical infrastructure employee to return to work after a coronavirus exposure (defined as a household contact or having close contact within 6 feet of an individual with confirmed or suspected coronavirus for up to 48 hours before the individual became symptomatic).
The guidelines are a substantial departure from how I’ve been advising my clients for the past month.
Bloomberg Law asks whether employers are “responsible for paying workers for the time it takes to record their body temperatures before entering the workplace.” To me, this question doesn’t require a legal analysis but a common-sense application of basic decency. If your employees are queuing before entering work because you are requiring them to pass a temperature check, pay them … period.
Since this is a legal blog, however, I might as well look beyond common sense and examine the laws impacted by this issue—the ADA and the FLSA.
Senator Patty Murray (D-Wash.) and Congresswoman Rosa DeLauro (D-Conn.) have sent a scathing letter to Secretary of Labor Eugene Scalia calling out the DOL for contradictions they see between the text of the Families First Coronavirus Response Act and the agency’s interpretive guidance.
OSHA, the federal agency responsible for health and safety, has been all over the coronavirus pandemic, providing a wealth of resources for employers.
That said, OSHA does not have a specific standard addressing viral pandemics. Instead, it regulates this outbreak via its general duty clause: “Each employer shall furnish to each of [its] employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
So what steps should employers take to furnish employees a workplace safe from coronavirus—a hazard that is causing or is likely to cause death or serious physical harm?
If you thought the DOL was done publishing FAQs on the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act with the publications of last week’s regulations, boy do I have a surprise for you.
The past two weeks have seen a record 10 million new unemployment claims. This number does not even include many of the millions more who have had their hours or wages cut as businesses continue to struggle with the realities of operating in a world turned upside down by coronavirus. Sadly, we should expect this situation to get a lot worse before it starts to get better.
Thankfully for each worker unemployed or underemployed as a result of coronavirus, the CARES Act provides significant financial relief. It contains the following seven unemployment expansion and enhancement provisions.
My family has been self-quarantined for the past three weeks. We did so before Ohio ordered people to stay at home, and before anyone started talking about social distancing and flattening the curve.
We chose to do this because our son is high-risk with a heart defect and asthma, and none of us wanted to get him sick.
We take our responsibility to halt the spread of this killer virus very seriously. We view it not only as a responsibility to ourselves not to become ill, but also to society as a whole not to spread it to others in the event we are silent or pre-symptomatic carriers. We know that one can transmit the virus for up to 14 days after exposure and before any symptoms appear; we’ve not been closer than six feet from anyone but the four of us living this house for weeks.
Yesterday afternoon, the Department of Labor published its long-awaited (as in, for the past two weeks) regulations to the paid family leave and paid sick leave provisions of the Families First Coronavirus Response Act. You can download them and read them for yourself (all 124 pages) here.
Much is unchanged from the Act itself and the three sets of FAQs (one, two, and three) the DOL published over the past week.
There are, however, many key differences in how we have been interpreting the FFCRA since it became law.
I will discuss these regulations and field your questions on another Zoominar (this time, fingers crossed, free of Zoombombs), tomorrow, Friday, April 3, at 10 am ET. You can participate here: https://zoom.us/j/976011327
I’ve also summarized the key regulatory differences and highlights below.
The Department of Labor's FFCRA regulations are out. And they are significant.
If you thought you understood this Act, you don't.
Among the key interpretations:
Government stay at home and shelter in place orders qualify for leave.
Intermittent leave is very limited.
The scope of people for whom an employee can provide care and qualify for leave is narrow.
An employee cannot take childcare related leave if someone else is available to care for their child(ren).
There is a lot more to digest, and I'll have a full summary of all of the key changes in the morning. For now, you can read all 124 pages of the regs here, or just wait for me (and the rest of the employment law bloggers) to publish our summaries.
One of the questions I have received the most since the passage of the Families First Coronavirus Response Act is how employers claim the tax credit available under the Act for paid leave provided to employees.
Late yesterday, the IRS published a detailed list of FAQs explaining all of the mechanics of this tax credit. I want to focus on the key employment law piece of these FAQ, how an employer should substantiate its eligibility for tax credits, i.e., the documentation you need to keep.
The IRS discusses this important issue in Questions 44 – 46. I’ll break it all down for you here.
One employer is an anomaly, two is a trend that must be stopped.
Last week, I nominated for the Worst Employer of 2020 an unnamed national restaurant chain that was reported to be stealing (the company called it “absorbing”) its employees’ CARES Act stimulus checks by reducing their scheduled hours in a pro-rata amount.
Now, another employer has been outed with similar plans.
A quick reminder that I’ll be live on Zoom today from 1 - 2 pm ET discussing all things Coronavirus, including the DOL’s most recent additions to its Families First Coronavirus Response Act FAQs (part 1 of which I covered here, and part 2 of which I’m covering below).
You can access the Zoominar here: https://zoom.us/j/856368874 (and don’t forget that Norah promised to join for a song at the end).
Late yesterday, the DOL published a second round of FAQs (numbers 15-37) answering more questions on the operation of paid family and sick leave under the Families First Coronavirus Response Act.
After a week of self-imposed quarantine in my home, and a week of mandatory sheltering in place by the State, now is as good a time as any to tell everyone how I’m holding up, and also to ask everyone, “How are you?”
First me.
The truth is, I’m not great. I’m tired, I’m stressed, and I’m worried.
Yesterday I held my first Zoominar. (Is this an actual word, or did I just make it up?) I opened up my Zoom room for the first 100 people to join and ask any coronavirus-related employment law questions they wanted. I shared #MyQuarantineHaiku (see below), saw some familiar faces, met some new old friends, and answered dozens of questions.
If you weren’t able to join or couldn’t get in, you can watch it here:
Also yesterday, during my Zoominar, the DOL published its required Employee Rights poster for the Families First Coronavirus Response Act. You must post it alongside your other employment law posters no later than April 1, and email it to those employees that are currently working remotely. But you might want to brush up on your PDF editing skills before you do so, because the DOL’s model poster has a big ol’ typo. In describing the paid leave entitlement for employees taking time off to care for children, the DOL lists the maximum dollar cap as $12,000 instead of $10,000. A big mistake, and one we will assume the DOL will fix soon. (Thanks to Eric Meyer for pointing this out to me.) You can also bring it to the DOL’s attention on one of its FFCRA twitter chats, or on the online forum it is hosting.
Two more things. First, I will be hosting another Zoominar this coming Monday, March 30, from 1 – 2 pm. And this time I won’t be caught off guard by the questions about how my daughter’s band, Fake ID, is weathering the coronavirus storm. In fact, she’s promised to join and perform a song for everyone. You’ll be able to access the Zoominar here.
Finally, #MyQuarantineHaiku.
Day-time pajamas
I don’t have hair to pull out
Night-time pajamas
Be well and stay safe. I’ll see everyone tomorrow.
