HUB International Answers Questions About COVID-19

CHICAGO – From HUB International’s Risk Services Division:

  1.   Is a COVID-19 case considered recordable?

It Depends. OSHA’s recordkeeping rules apply only to injuries or “illnesses.” The rule defines an injury or illness as “an abnormal condition or disorder.” Illnesses include “both acute and chronic illnesses, such as, but not limited to, a skin disease, respiratory disorder, or poisoning.” Despite this broad definition, OSHA has essentially excluded from coverage cases of the common cold or the seasonal flu. OSHA has decided that COVID-19 should not be excluded from coverage of the rule – like the common cold or the seasonal flu – and, thus, OSHA is considering it an “illness.” However, OSHA has stated that only confirmed cases of COVID-19 should be considered an illness under the rule. Therefore, if an employee simply comes to work with symptoms consistent with COVID-19 (but not a confirmed diagnosis), the recordability analysis would not necessarily be triggered at that time.

If an employee has a confirmed case of COVID-19, the employer would need to assess whether the case was “work-related” under the rule and, if so, whether it met the rule’s additional recordability criteria (i.e., resulted in a fatality, days away from work, restricted duty, or medical treatment beyond first aid). Given current protocols for treating COVID-19, it is likely that for any case that is confirmed, the additional severity criteria will be met, as affected persons are instructed to self-quarantine and stay home. The primary issue for employers therefore becomes whether a particular case is “work-related.”

An illness is work-related under the rule if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for illnesses that result from events or exposures in the work environment, unless certain exceptions apply. One of those exceptions is that the illness involves signs or symptoms that surface at work but result solely from a non-work-related event or exposure that occurs outside of the work environment. Thus, if an employee develops COVID-19 solely from an exposure outside of the work environment, it would not be work-related, and thus not recordable.

The employer’s assessment should consider the work environment itself, the type of work performed, risk of person-to-person transmission given the work environment, and other factors such as community spread. Healthcare work environments, where job activities are more likely to result in person-to-person exposure, would present a more likely scenario of work-relatedness than non-healthcare settings. Because each work environment is different, employers must conduct an individualized assessment when a confirmed case of COVID-19 presents. 

  1.   If an employee is diagnosed with COVID-19, can I require that he or she provide a release to work from his/her doctor prior to returning to work?

Yes, But. The CDC, OSHA, and the DOL all urge employers to be flexible. It is likely that healthcare providers are overwhelmed with patients and care therefor, documentation requests are likely going to be put aside for some time. 

Can an employer require an employee to disclose his or her diagnosis of COVID- 19? Likewise, can an employer require an employee to disclose his/her exposure to someone diagnosed with COVID-19?

It Depends. Under the FMLA, employers are entitled to all of the information contained on the Certificate of Health Care Provider for Employee’s own Serious Health Condition. Likewise, under the ADA, the diagnosis information is allowed so long as it’s pursuant to the employer’s effort to identify a reasonable accommodation for the employee to perform the essential functions of the job.

The CDC advises that employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure. If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.

  1.   An employee has tested positive for COVID-19, can we share this with our employees?

It Depends. If the employer learns of the employee’s medical information, condition, diagnosis etc. through the health plan, then that information is likely Protected Health Information (PHI) and protected under HIPAA. In that case, the employer (or employees of the employer) who know absolutely cannot share the medical diagnosis or other medical information unless it is facing a true medical emergency where the employee’s diagnosis becomes imperative for health and safety reasons or the employee has given a written HIPAA-compliant authorization to share the information. In certain circumstances, the employer may also disclose information to public health authorities without authorization, although those circumstances are limited.

  1.   How should employers provide notice to employees of FFCRA?

A model poster has been provided by the DOL Wage and Hour division and is available here. The DOL has also provided an FAQ regarding notice requirements and is available here.

  1.   What if there are multiple entities within my organization? How does that affect the “500 employees” threshold?

Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500- employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act.

In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.

  1.   If an employee was placed on furlough prior to the effective date of FFCRA, and is still on furlough as of April 1, will that employee be eligible for FFCRA benefits? Are employees eligible for FFCRA benefits if they are subject to a state mandated “shelter in place” order?

The DOL has provided full guidance on this matter. Please carefully review the information below.

Employer closed place of business/worksite BEFORE April 1, 2020

If the employee stopped working and stopped receiving pay before April 1 because the employer does not have work for the employee, the employee is NOT eligible for FFCRA benefits but may be eligible for unemployment insurance benefits. This is true whether the employer closes the worksite for lack of business or because the employer is required to close pursuant to a Federal, State or local directive. Employees should contact their local State workforce agency or State unemployment insurance office for specific questions about his/her eligibility for unemployment benefits. For additional information, please refer to this link.

Employer closed place of business/worksite ON OR AFTER April 1, 2020

If the employee stops working and stops receiving pay after April 1 due to business closure—even if the employee requested leave prior to business closure—the employee is not eligible to receive FFCRA benefits but may be eligible for unemployment insurance benefits. This is true whether the employer closes the worksite for lack of business or because the employer is required to close pursuant to a Federal, State or local directive. Employees should contact their local State workforce agency or State unemployment insurance office for specific questions about his/her eligibility for unemployment benefits. For additional information, please refer to this link.

If the employer later reopens business/worksite and employees resume work thereafter, employees may be eligible for FFCRA benefits if he/she experiences a FFCRA-qualifying event.

Employer closed place of business/working WHILE employee is on FFCRA leave

If the employer closes while an employee is on FFCRA leave, the employer must pay for any Emergency Paid Sick Leave or Emergency FMLA up to the date of business closure. As of the date of closure, the employee is no longer entitled to FFCRA benefits but may be eligible for unemployment insurance benefits. This is true whether the employer closes the worksite for lack of business or because the employer is required to close pursuant to a Federal, State or local directive. Employees should contact their local State workforce agency or State unemployment insurance office for specific questions about his/her eligibility for unemployment benefits. For additional information, please refer to this link.

If employer’s place of business stays open but furloughs an employee ON OR AFTER April 1, 2020

If an employee is furloughed because the employer does not have enough work or business for the employee, the employee is not eligible for FFCRA benefits. The employee may be eligible for unemployment insurance benefits. Employees should contact their local State workforce agency or State unemployment insurance office for specific questions about his/her eligibility for unemployment benefits. For additional information, please refer to this link.

  1.   If an employee’s scheduled work hours are reduced, can the employee receive FFCRA benefits for the time not worked?

No. Employees are not entitled to FFCRA benefits for the hours not worked because the employee is not prevented from working those hours due to a COVID-19 qualifying reason, even if the reduction in hours was somehow related to COVID-19. To clarify, if an employee is unable to work their normal full schedule because of a FFCRA-qualifying reason, then the employee is eligible for FFCRA benefits. The amount of FFCRA benefits is then computed based on the employee’s work schedule before it was reduced.

  1.   Can FFCRA be taken intermittently?

This answer is dependent on whether the employee is teleworking or working at his/her usual worksite.

Teleworking employees

An employee is allowed to take Emergency Paid Sick Leave or Emergency FMLA on an intermittent basis if the employer allows it and if the employee is unable to telework their normal schedule of hours due to a qualifying reason. The employee may take intermittent leave in any increment, provided that the employee and employer agree.

For example, if the employer agrees on a 90-minute increment, the employee could telework from 1:00-2:30 pm, take leave from 2:30-4:00 pm, and then return to teleworking.

Employees working at his/her usual worksite (and not teleworking)

An employee who is not teleworking and instead working and his/her usual worksite cannot take Emergency Paid Sick Leave intermittently and instead must take Emergency Paid Sick Leave in full-day increments. Once beginning to take Emergency Paid Sick Leave, the employee must continue to take paid sick leave each day until the employee either (1) exhausts the full amount of Emergency Paid Sick Leave, or (2) the employee no longer experiences a qualifying reason. THIS LIMIT IS IMPOSED BECAUSE IF THE EMPLOYEE IS SICK OR POSSIBLY SICK WITH COVID-19 OR CARING FOR AN INDIVIDUAL WHO IS SICK OR POSSIBLY SICK WITH COVID-19, THE INTENT OF FFCRA IS TO PROVIDE SUCH PAID SICK LEAVE TO KEEP EMPLOYEES FROM SPREADING THE VIRUS TO OTHERS.

 Emergency Paid Sick leave must be taken in full-day increments if the employee’s need for leave is:

  1. a)   the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. b)   the employee is advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. c)   the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. d)   the employee is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
  5. e)   the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

By contract, an employee may take Emergency Paid Sick Leave or Emergency FMLA on an intermittent basis if the employer allows it and if the employee is unable to telework due to care for a child whose school or childcare provider/facility is closed due to COVID-19-related reasons. For example, if the employee’s child is at home because of school closure, the employee may take leave on Mondays, Wednesdays and Fridays to care for their child, but work on Tuesdays and Wednesdays.

The Department of Labor encourages employers and employees to collaborate to achieve flexibility and meet mutual needs, and the Department is supportive of voluntary arrangements where permissible.

  1.   What documentation/certification can the employer require of employees for FFCRA? What records do I need to keep?

Employees are required to provide appropriate documentation for their Emergency FMLA or Emergency Paid Sick Leave

Emergency Paid Sick Leave

Employees are required to provide appropriate documentation in support of the reason for the leave

including:

  1. a)   Employee’s name
  2. b)   Qualifying reason for requesting leave
  3. c)   Statement that the employee is unable to work or telework for the noted qualifying reason
  4. d)   Date(s) for which leave is requested
  5. e)   In the case of quarantine or isolation, identify the source of any quarantine or isolation order, or the name of the health care provider who advised the employee to self-quarantine (example, the documentation may be a copy of the Federal, State or local quarantine/isolation order related to COVID-19 or written documentation by a health care provider advising the employee to self- quarantine due to COVID-19-related concerns)

Emergency FMLA

Employees are required to provide appropriate documentation in support of their need for leave to care for a child whose school or childcare provider/facility is closed due to COVID-19. This documentation could be a notice that has been posted on a government, school or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider.

This documentation is also required if the employee is seeking Emergency Paid Sick Leave for the same reason.

Of note, employees seeking a leave of absence for “normal” FMLA-qualifying reasons are still subject to all existing certification requirements under the FMLA.

Recordkeeping

If you intend to claim a tax credit for payments made to employees under FFCRA, the employer should retain all documentation provided by employees for their FFCRA- related leaves. Employers should consult Internal Revenue Service (IRS) applicable forms, instructions and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit. This recordkeeping applies to both Emergency FMLA and Emergency Paid Sick Leave.

  1. Can an employee take 80 hours of Emergency Paid Sick Leave for one qualifying reason, and then take another 80 hours of Emergency Paid Sick Leave for a different qualifying reason at a later time?

No. Emergency Paid Sick Leave provides up to 80 hours total of paid sick time. (Of note, full time employees are eligible for up to 80 hours, whereas part time employees receive a prorated amount of Emergency Paid Sick Leave.) The 80 hours may be used for any combination of Emergency Paid Sick Leave qualifying reasons, but again, not to exceed a total of 80 hours.

It is important to note that, once you stop experiencing an Emergency Paid Sick Leave qualifying event, you will also cease to use your Emergency Paid Sick Leave. If you have any Emergency Paid Sick Leave remaining, you may use it at a later time for a qualifying reason before December 31, 2020 when FFCRA sunsets.

  1. What is considered “regular rate of pay” for purposes of FFCRA?

For purposes of FFCRA, “regular rate of pay” is the average of the employee’s regular rate over a period of up to six months prior to the date the employee takes FFCRA leave. If the employee has not worked for the employer for at least six months, the regular rate is the average of the employee’s regular rate of pay each week worked to date. If an employee is paid with commissions, tips, or piece rates, these wages are incorporated into the rate calculation.

If an employer provides pay in excess of the $200 per day or $511 per day noted under FFCRA, will the employer receive more tax credits?

No. The tax credits are capped at $200 per day or $511 per day (depending on the FFCRA reason).

  1. Are employees allowed to use employer-provided leave entitlements/paid time off concurrently with FFCRA benefits for the same hours?

No. An employee must choose either FFCRA leave or the employer-provided leave entitlement/paid time off.

Employers may allow employees to supplement their FFCRA benefits with preexisting employer-provided leave entitlements/paid time off. For example, if an employee is receiving 2/3 their regular rate of pay, the employer may allow employees to use employer- provided paid time off to supplement the 1/3 of normal earnings so that the employee receives his/her full normal earnings for each hour. An employer may not require employees to supplement FFCRA benefits with preexisting employer-provided paid time off—it is the employee’s option to supplement when the option is permissible by the employer. That said, an employer does not have to allow employees to supplement their FFCRA benefits.

Of note, if the employer allows employees to supplement FFCRA benefits with employer- provided paid time off, the employer may not claim for tax credits for the supplemental amounts.

Categories: Alerts, COVID-19