- Workplace Safety Issues
- Workforce Travel Issues
- International Workforces
- Immigration Issues
- Healthcare and HIPAA Issues
- Benefits & Group Health Plan Administration
- Wage and Hour Issues
- Employee Leave (FFCRA) and ADA
- Discrimination, Harassment, and EEO Issues
- Labor Relations
- Warn Act and Plant Closings
The Association worked with our HR Hotline Partner to address the many employment-related issues facing employers in the wake of the COVID-19 coronavirus. A Frequently Asked Questions (FAQ) document was created to assist employers and will be updated as events warrant. You may contact the Association with further questions at HR@mascpa.org.
The information contained in this guidebook represents current practices regarding the recommended operation of manufacturing facilities, where and when permitted by law, during this time of the unprecedented COVID-19 pandemic.
Please be advised that some or all of the information contained in this document may not be applicable to all other businesses or places of work. We strongly recommend that before implementing any of the ideas contained herein you carefully evaluate, and consult with outside legal counsel as appropriate, the legality, applicability and potential efficacy of this information in your place of business. Please also note that this is a “living” document that may be updated at any time given the fluidity of this situation.
The Association bears no responsibility for any circumstances arising out of or related to the adoption, or decision not to adopt, any of the practices or procedures contained in the guidebook.
What Should An Employer Do If You Believe You Have An Employee Who Has Tested Positive For Covid-19 Or If An Employee Has Flu-like Symptoms?
Employers Must Provide Their Employees With A Workplace That Is Free From Recognized Hazards Likely To Cause Death Or Serious Physical Harm.
- General Duty Clause, Section 5(a)(1) Of The Occupational Safety And Health Act Of 1970.
- * The Centers For Disease Control Has Created Guidelines For Employers In Non Healthcare Settings
What if an employee appears sick?
If any employee presents themselves at work with a fever or difficulty in breathing, this indicates that they should seek medical evaluation. While these symptoms are not always associated with influenza and the likelihood of an employee having the COVID-19 coronavirus is extremely low, it pays to err on the side of caution. Retrain your supervisors on the importance of not overreacting to situations in the workplace potentially related to COVID-19 in order to prevent panic among the workforce.
Can we ask an employee to stay home or leave work if they exhibit symptoms of the COVID-19 coronavirus or the flu?
Yes, you are permitted to ask them to seek medical attention and get tested for COVID-19, and under most circumstances you can ask them to leave work.
How much information regarding COVID-9 are we allowed to ask from our employees and employees that call in sick? Companies want to make sure returning employees have not been exposed to COVID-19.
Refer to the EEOC Link for questions you may ask under ADA. During a pandamic, ADA-covered employers can ask employees if they are experiencing symptoms of the pandemic virus and may take temperatures, Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. Employers need to keep employee information private because the HIPAA laws are still in effect. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. If employees refuse, employers can ask them to leave and may employ discipline measures. Executive management staff can have knowledge because of potential exposure to other employees and may need to take action to alert impacted employees.
If an employee presents symptoms associated with the Coronavirus, do employers have the right to send them home?
Yes. This is a pandemic with a highly contagious virus. An employer may require an individual to leave their premises if they are showing signs of illness that are signs of COVID-19. You can insist they seek medical attention. Employers may also require the employee to present a Medical Release in order to return showing that they do not have the virus and have not been directly exposed to the virus.
What steps can we take now to minimize risk of transmission?
Repeatedly, creatively, and aggressively encourage employees and others to take the same steps they should be taking to avoid the seasonal flu, which is already one of the worst flus in the last 10 years. For the annual influenza, SARS, avian flu, swine flu, and the COVID-19 virus, the best way to prevent infection is to avoid exposure. Perhaps the most important message employers can give to employees is to stay home if sick. In addition, instruct your workers to take the same actions they would to avoid the flu. For example:
Wash your hands often with soap and water for at least 20 seconds. If soap and water are not available, use an alcohol-based hand sanitizer.
- Avoid touching your eyes, nose, and mouth with unwashed hands.
- Avoid close contact with people who are sick.
- Stay home when you are sick.
- Cover your cough or sneeze with a tissue, then throw the tissue in the trash.
- Clean and disinfect frequently touched objects and surfaces.
- Ensure that employees have ample facilities to wash their hands, including tepid water and soap, and that third-party cleaning/custodial schedules are accelerated.
- Teleconference in lieu of meeting in person if available.
- Educate your employees about COVID-19, its symptoms, and the potential health concerns associated with any travel at this time.
- Have a single point of contact for employees for all concerns that arise relating to health and safety.
- Wear personal protective equipment, such as gloves and goggles, if touching or working bloodborne pathogens.
- Follow updates from the CDC and the World Health Organization (WHO) regarding additional precautions.
- You may reference the Occupational Safety and Health Administration’s (OSHA’s) Guidance on Preparing Workplaces for an Influenza Pandemic for additional information on preparing for an outbreak.
Can an employee refuse to come to work because of fear of infection?
Employees are only entitled to refuse to work if they believe they are in imminent danger. Section 13(a) of the Occupational Safety and Health Act (OSH Act) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” OSHA discusses imminent danger as where there is “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”
The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time, for example, before OSHA could investigate the problem. Requiring travel to China or to work with patients in a medical setting without personal protective equipment at this time may rise to this threshold. Most work conditions in the United States, however, do not meet the elements required for an employee to refuse to work. Once again, this guidance is general, and employers must determine when this unusual state exists in your workplace before determining whether it is permissible for employees to refuse to work.
In addition, Section 7 of the National Labor Relations Act (NLRA) extends broad-based statutory protection to those employees (in union and non-union settings alike) to engage in “protected concerted activity for mutual aid or protection.” Such activity has been defined to include circumstances in which two or more employees act together to improve their employment terms and conditions, although it has been extended to individual action expressly undertaken on behalf of co-workers.
On its own website, the National Labor Relations Board (NLRB) offers a number of examples, including, “talking with one or more employees about working conditions,” “participating in a concerted refusal to work in unsafe conditions,” and “joining with co-workers to talk to the media about problems in your workplace.” Employees are generally protected against discipline or discharge for engaging in such activity.
If an employee is called back to work and they give HR a doctor’s note stating they cannot return yet, should they be kept on UC?
If you are recalling your employee from UC and have a job available for the employee in question, they should return to work. Since they have a doctors note and it is related to related to COVID-19 they could be eligible for the Family First Coronavirus Response Act (FFCRA) which provides two weeks of sick leave and/or FMLA for 10-12 weeks. If they are off beyond what is provided the FFCRA, they could use their sick time, vacation, possibly this is Short Term Disability. The employer can require an updated excuse after they have explained that their employer is providing PPE or accommodating the medical issue.
Most of our shop feel unsafe wearing mask while working because of the following: 1. Impedes their vision 2. Hard to breath with them on all day 3. And cause an unsafe condition for the operation of equipment We have them working within their own areas which is much greater than 6′ but do pass each other or have to help each other from time to time.
The PA Department of Health explains, “an employee does not need to wear a mask if it impedes their vision, if they have a medical condition, or would create an unsafe condition in which to operate equipment or execute a task.” Link: PA Department of Health FAQs Health Safety Order. If they are helping someone, they should don their mask unless it creates a safety concern. If they know they are going to pass someone, they should don their mask. They should keep the mask on their person at all times.
FACE MASKS: Where can you find the information on the commonwealth’s order requiring face masks? Are employers required to provide N95 or surgical masks? Or are cloth masks sufficient? Are they supposed to wear them at all time if employer requires? Are there medical exemptions requiring employee to wear a face mask.
On April 15th, 2020 “Health Secretary Signs Order Providing Worker Safety Measures to Combat COVID-19”
Employers may provide cloth masks or homemade masks as described in the Health Order above.
The employer SHALL PROVIDE MASKS TO EMPLOYEES:
- For use during the employees time at the business, e.g. walking across the parking lot, in bathrooms, etc. (except when eating and drinking)
- Employers may approve employee’s homemade masks that are made in accord with Department of Health Guidance.
Exemptions for mask wearing for employees include:
- Medical condition
- Impedes vision
- Creates unsafe condition to operate equipment or conduct a task
- Eating or drinking
- Employees alone in offices – Only if they leave their own office or someone else might enter that office, they must wear a mask.
- Employees working outside – Only if it impedes vision, medical condition or create unsafe working condition.
In all circumstances social distancing of 6 feet should be implemented and Employers and employees should use common sense to avoid employee and public sickness and possibly death.
How is an employee handled that refuses to wear a face mask? Can an employer refuse reentry?
The Department clearly states that they do not dictate to employers how they should manage their workforce if the employee refuses to comply with the Order. As an employer trying to protect ALL of their employees, you can proceed with disciplinary action you deem necessary up to and including termination. However, make sure that you have documented all steps taken to encourage the employee to comply with the State Order.
NOTICE: The Department of Health has indicated that they will provide an employee complaint site for employees to report those employers who are not abiding by the order and potentially putting their employees at risk of exposure.
What steps should we take if we use chemicals to combat the COVID-19 coronavirus?
Be mindful of the specific requirements of OSHA’s Hazard Communication standard if new chemicals, or temporary employees, are introduced into work areas to combat the COVID-19 coronavirus. You are required to provide employees with effective information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new chemical hazard the employees have not previously been trained about is introduced into their work area. A comprehensive hazard communication program should include contain labeling and other forms of warning, safety data sheets, and employee training. Now is also a good time to retrain employees under OSHA’s bloodborne pathogens standard, including revisiting and communicating the elements of your exposure control plan.
What current travel restrictions are in place?
Presidential Proclamation on the Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus
Please contact the US Department of State for current travel restrictions: Travel Advisories.
Also, you may refer to the Center for Disease Control for information related to travel: CDC Traveler’s Health Website.
Can we prohibit an employee from traveling on their personal time?
No, you generally cannot prohibit otherwise legal activity, such as travel abroad by an employee. This includes pregnant employees or those with medical conditions. However, you should educate your employees before they engage in travel to risky environments, and you can – and should – monitor those employees returning from such travel for signs of illness.
What should I do if an employee has recently traveled to an affected area or otherwise may have been exposed to the COVID-19 coronavirus?
The Americans with Disabilities Act (ADA) places restrictions on the inquiries that an employer can make into an employee’s medical status. The ADA prohibits employers from making disability-related inquiries and requiring medical examinations, unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) where the employer has a reasonable belief that the employee poses a direct threat to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.
According to the Equal Employment Opportunity Commission (EEOC), whether a particular outbreak rises to the level of a “direct threat” depends on the severity of the illness. The EEOC instructs employers that the assessment by the CDC or public health authorities provides the objective evidence needed for a disability-related inquiry or medical examination. To date, the CDC has not classified the COVID-19 coronavirus as a pandemic.
Can employees refuse to travel as part of their job duties?
Employees who object on behalf of others or act in groups could be covered by the NLRA’s protection of concerted protected activity. You will want to proceed with caution and consult with your attorney before taking any steps in this regard. Moreover, under the federal OSH Act, employees can only refuse to work when a realistic threat is present.
Therefore, if employees refuse your instruction to travel for business to any other country for fear of catching the COVID-19 coronavirus, try to work out an amicable resolution. For example, the employer and the employee can check and discuss the CDC (avoid Nonessential travel), State Department (Do Not Travel to China), and DHS Travel Advisories, which provide guidance on China Travel.
The CDC is also advising that some individuals may be more at risk of infection than others in the general population. Thus, follow the CDC direction on pregnant employees or on related reproductive issues, and do not make decisions without medical support. Moreover, actions by other countries, especially in Asia, may cause employee concerns, and absolute warnings and restrictions like those on China may not exist.
What should we do about expats working abroad and our global workforce?
Generally, the reaction to the COVID-19 coronavirus varies from country to country (or even jurisdiction to jurisdiction within a particular country). Employers with expats or other employees abroad should ensure copies of all expat assignment agreements and contracts are nearby if needed for reference. Most often the resolution of issues related to obligations with respect to these employees begin with reviewing applicable contractual obligations and agreements. You should also review all travel, medical, and other insurance policies to determine coverage limitations and to help assess risk.
Should we bring our expats home?
In some circumstances, it may be best practice to do so. You should undertake a careful evaluation of conditions in the location where they are living and working on a frequent basis. It would be a good practice to require your expat employees to regularly report back on conditions and their circumstances.
What if one of our expat employees becomes quarantined abroad?
If an expat or employee is quarantined abroad, you should seek legal and other advice regarding the particular facts and circumstances of the situation. You will need to develop a plan to meet your obligations to the employee and their family, as well as your company’s needs. Each situation will be different, so your advice will need to be tailored to the situation.
What about our expats located in an area that is heavily affected by the COVID-19 outbreak?
In areas currently heavily affected, you should undertake a thorough review of conditions as they pertain to all employees within the area on a daily basis. The applicable laws vary from jurisdiction to jurisdiction. Some countries impose significant obligations concerning a duty of care to employees on employers that are more comprehensive than U.S. rules. You should not assume the law in other jurisdictions applies as it does here.
What will happen to my foreign national’s immigration status if they are stuck outside the U.S.?
Generally speaking, U.S. immigration law only applies to a foreign national when that person is physically in the country. In most situations, a person is not considered to have failed to maintain lawful immigration status if they are not physically in the U.S. The employee’s absence from the U.S., however, could trigger other collateral immigration issues. It is important to seek specific legal advice for each impacted case.
Does the Presidential Proclamation mean that the U.S. consulates will deny all visa applications filed in China in those non-exempt categories?
The State Department has not yet made specific announcements. However, some U.S. consulates in China have already postponed interview scheduling. A blanket visa denial rule is unlikely, however, because the terms of this order make it permissible to depart from China, remain in a third country for 14 days, and then lawfully seek entry into the U.S.
At the very least, visa applications filed in China will likely be delayed. On February 1, 2020, the U.S. Embassy in China announced: “Mission China will be closed to the public from February 3-7 in accordance with Chinese government guidance. Emergency American citizen services will be available.” On February 10, 2020, the U.S. Embassy posted: “As of February 10, 2020, regular visa services at the U.S. Embassy in Beijing and the U.S. Consulates General in Chengdu, Guangzhou, Shanghai and Shenyang are suspended. Due to the ongoing situation relating to the novel coronavirus, the U.S. Embassy and Consulates have very limited staffing and may be unable to respond to requests regarding regular visa services.”
Does the Presidential Proclamation affect those with visas?
The Proclamation specifically exempts any alien seeking entry into or transiting the United States pursuant to an A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 visa.
If my foreign national employee is subject to these travel restrictions, what are my options to get them back to the U.S. as soon as possible?
This will be a case-by-case analysis, but most likely the employee will have to consider going to a third country, remain in that third country for at least 14 days, and then proceed to the U.S. This may require extra planning, such as dealing with a visa to go to the third country. In addition, when several other countries have started to implement similar travel restrictions, the situation remains in flux. It is also unclear if the administration would expand this order to include more countries and regions depending on the ongoing situation of the outbreak.
What issues can we expect green card holders to encounter?
Travel restrictions may cause issues for green card holders who have already been outside of the United States for an extended period of time. Extended absences from the United States by green card holders may lead to extensive questioning upon re-entry or a determination that the green card holder has abandoned their permanent resident status.
What happens to employees on temporary visas who cannot work?
Pending specific guidance from DHS, these workers would presumably be treated as if they were on an approved, unpaid leave, and therefore would not be out-of-status for failing to work.
Must I pay an H-1B alien the salary listed in the petition even if that person cannot now work?
Again, you could presumably put such a person on an unpaid leave of absence until they are able to work again.
Does the COVID-19 coronavirus emergency trump HIPAA privacy rules?
No, the government recently sent a stern reminder to all employers, especially those involved in providing healthcare, that they must still comply with the protections contained in the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule during the COVID-19 coronavirus outbreak. The Office for Civil Rights of the U.S. Department of Health and Human Services (HHS) issued a reminder after the WHO declared a global health emergency. In fact, the Rule includes provisions that are directly applicable to the current circumstances.
What are our obligations under the HIPAA privacy rules if we are contacted by officials asking for emergency personal health information about one of our employees?
The privacy restrictions mandated by HIPAA only apply to “covered entities” such as medical providers or employer-sponsored group health plans, and then only in connection with individually identifiable health information. Employers are not covered entities, so if you have medical information in your employment records, it is not subject to HIPAA restrictions.
Nevertheless, disclosures should be made only to authorized personnel, and care should be taken even in disclosures to government personnel or other groups such as the Red Cross. Further, you should be careful not to release information to someone until you have properly identified them.
How should we treat medical information?
We recommend you treat all medical information as confidential and afford it the same protections as those granted by HIPAA in connection with your group health plan. In certain circumstances, if you have plan information, you can share it with government officials acting in their official capacity, and with health care providers or officially chartered organizations such as the Red Cross. For example, you can share protected health information with providers to help in treatment, or with emergency relief workers to help coordinate services.
In addition, you can share the information with providers or government officials as necessary to locate, identify, or notify family members, guardians, or anyone else responsible for an individual’s care, of the individual’s location, general condition, or death. In such case, if at all possible, you should get the individual’s written or verbal permission to disclose.
However, if the person is unconscious or incapacitated, or cannot be located, information can be shared if doing so would be in the person’s best interests. In addition, information can be shared with organizations like the Red Cross, which is authorized by law to assist in disaster relief efforts, even without a person’s permission, if providing the information is necessary for the relief organization to respond to an emergency.
Finally, information can be disclosed to authorized personnel without permission of the person whose records are being disclosed if disclosure is necessary to prevent or lessen a serious and imminent threat to the health and safety of a person or the public.
May covered entities share protected health information with public health authorities?
When there is a legitimate need to share information with public health authorities and others responsible for ensuring public health and safety, covered entities may share PHI to enable them to carry out their public health responsibilities. This may arise with the current outbreak of COVID-19. The key, as always, is to limit disclosures to the minimum necessary to the purpose, strictly in accordance with these parameters.
For example, covered entities may share information as necessary with the Centers for CDC, as well as health departments authorized by law to receive such information, to prevent or control disease or injury. You may even disclose PHI to foreign government agencies that are working with authorized public health authorities.
If our employees are no longer working, are they still entitled to health insurance coverage?
Not necessarily. You need to check your plan document (if self-insured) or call the insurance company (if fully insured) to determine how long employees who are not actively working may remain covered by your health plan. Once this period expires, insurance coverage must be terminated (unless the insurance company or self-insured plan otherwise agrees to waive its eligibility provisions), and a COBRA notice must be sent. If your plan is self-insured and if you decide to waive plan eligibility provisions, you must make sure stop-loss insurers are notified and agree to cover claims relating to participants who would otherwise be ineligible for coverage.
What happens to health coverage if employees are not working and unable to pay their share of premiums?
In the normal course of events, health coverage will cease when premium amounts are no longer paid. However, several actions might be taken that would allow coverage to continue.
First, the insurer providing the health coverage may voluntarily continue the coverage while the disaster is sorted out and the employer reopens its doors. More likely, the employer may make an arrangement with the insurer providing health coverage to pay the employees portion of premiums to keep coverage in place (at least temporarily) and possibly until the employer can reopen its doors. Each situation will be different, depending upon the insurer and the relationship between the employer and the insurer. Therefore, each fact situation will have to be individually investigated.
Must we keep paying employees who are not working?
Under the Fair Labor Standards Act (FLSA), for the most part the answer is “no.” FLSA minimum-wage and overtime requirements attach to hours worked in a workweek, so employees who are not working are typically not entitled to the wages the FLSA requires.
One possible difference relates to employees treated as exempt FLSA “white collar” employees whose exempt status requires that they be paid on a salary basis. Generally speaking, if such an employee performs at least some work in the employee’s designated seven-day workweek, the salary basis rules require that they be paid the entire salary for that particular workweek. There can be exceptions, such as might be the case when the employer is open for business, but the employee decides to stay home for the day and performs no work. A U.S. Department of Labor (USDOL) opinion letter addressing these matters can be accessed here.
Also, non-exempt employees paid on a “fluctuating-workweek” basis under the FLSA normally must be paid their full fluctuating-workweek salaries for every workweek in which they perform any work. There are a few exceptions, but these are even more limited than the ones for exempt “salary basis” employees.
Of course, an employer might have a legal obligation to keep paying employees because of, for instance, an employment contract, a collective bargaining agreement, or some policy or practice that is enforceable as a contract or under a state wage law.
Finally, we caution employers to consider the public relations aspect of not paying employees who may not be working if they have contracted or are avoiding the COVID-19 coronavirus. Given the publicity surrounding this outbreak, it is possible that situations involving these kinds of issues could reach the media and damage your reputation and employee morale. Consider the big picture perspective when making decisions regarding paying or not paying your employees.
Can we charge time missed to vacation and leave balances?
The FLSA generally does not regulate the accumulation and use of vacation and leave. The salary requirements for exempt “white collar” employees can implicate time-off allotments under various circumstances. The USDOL has provided some guidance on this topic in an opinion letter that is accessible here. Again, however, what an employer may, must, or cannot do where paid leave is concerned might be affected by an employment contract, a collective bargaining agreement, or some policy or practice that is enforceable as a contract or under a state wage law.
How do you get employees to use their vacation in an orderly fashion? Especially during a busy time, employees may have excess vacation and will want to take the remainder of their time. May we change policy to say you can’t use more than 1 week during the busy time?
An employer can provide restrictions of vacation availability for their employees to address this scenario. Employers should update their policy manual and communicate clearly with the employees to explain the situation and the business need.
Can an essential business employer cut employee wages/salaries? Yes
How will an employee be paid that has a doctor note stating that they are high risk and should stay at home? Do they need to provide a doctor’s note as proof for a medical exemption?
The employee would be eligible for the two weeks of sick pay at 100% of the regular wages up to a maximum of $511 per day. He would then also file for unemployment for the weeks subsequent to those initial two weeks. No FMLA involved in this case. Employers can ask an employee to obtain a doctor’s note. This is a request for a reasonable accommodation under the ADA/ADAAA, however it also implicates employee safety and public health. I would give them time during work hours to obtain the doctor’s excuse/order. If you need to wait for the doctor’s office, then keep them working.
What if an employee says they have a low immune system and are afraid of getting the virus at work, so they want to stay home. Do they qualify for any of the paid leave?
No, unless they have a recommendation from their doctor that they self quarantine. Documentation must be provided from the doctor within a reasonable period of time. However, the employer should accept the employee’s word and obtain the documentation later. If they do not have a doctor’s recommendation, the employer probably should treat this inquiry as a request for a reasonable accommodation under the ADA and may want to start the interactive process. This would be an instance when the employer should consult with its attorney for case-by-case guidance.
Am employee states they are high risk and claim to have been tested, but has not provided any test results or a doctors excuse. The employee has stopped responding to requests for documentation and has not returned to work in a month, can we accept his non-responsiveness as a resignation?
Employees should be given a reasonable period of time to obtain a doctor’s excuse/order. The doctor’s office can fax, email, or mail the excuse/order directly to the employer if need be. If the employee refuses to provide medical documentation in a reasonable period of time, in this case, one month, you can consider the employee to have voluntarily resigned or job abandonment. You can proceed with sending them a certified letter indicating such and letting them know that they are considered no longer employed with your company.
Are manufacturers paying an additional wages or incentives during this crisis and does the FLSA require hazard pay?
No, the FLSA does not require hazard pay, but if you use it as an incentive, make sure it is included the regular rate (see question below). “The Fair Labor Standards Act (FLSA) does not address the subject of hazard pay, except to require that it be included as part of a federal employee’s regular rate of pay in computing the employee’s overtime pay.”
Some employers have been creative in providing incentive pay or bonus pay during this time. If you are considering any incentive, hazard or bonus pay, please refer to the Understanding Hazard Pay document so you understand that you are correctly calculating and paying employee according the Fair Labor Standards Act and not creating legal and financial exposure for the businesses.
How do you calculate and what is included in Regular Rate?
The “regular rate” under the Act is a rate per hour. The formula to compute the regular rate is:
- Total compensation in the workweek (including hazard pay) ÷ Total hours worked in the workweek = Regular Rate for the workweek
- More info on Regular Pay Rate click HERE
When calculating an employee’s regular rate, all compensation received by the employee in a workweek must be included, including wages, bonuses, commissions, and any other forms of compensation. 29 CFR 778.109.
If employers are using Hazard bonuses as incentives, are they correctly calculating and paying employee according the Fair Labor Standards Act?
Using Hazard bonuses increases the hourly rate of pay for Overtime calculations. Situation where scenario would apply would likely apply:
- Where these 3 factors occurred in a single workweek:
- Non-Exempt employee, Hourly employee
- Overtime- the employee works more than 40 hours in a regular 7 day work week
- Bonus in effect- like Hazard Pay
What is a Non-Discretionary Bonus?
Non-discretionary bonus is a bonus that you pay your employees “for working”.
- A bonus is non-discretionary, if the employer has created an expectation of payment and is no longer free to determine the timing or amount of payment without breaching legal or contractual agreements with its employees. These bonuses are often based on employee or group performance. Performance can be measured by meeting a specific goal, including production standards and sales targets. Generally, employers and employees agree in advance on the method and timing of payment
of non-discretionary bonuses. This is the case for commission wages, sales incentives and other rewards offered in direct correlation to the employees’ quantity and quality of work and are part of an employee’s weekly compensation and must be included in the determination of a regular wage rate.
- Examples are: Shift differentials, attendance bonuses, hazard pay, commissions sales bonuses, production bonuses.
- Hazard pay is not discretionary and will not be factored into overtime.
Should annual bonus money be included the total when figuring out your monthly payroll expense? Yes
How is overtime calculated?
When an employee is entitled to overtime pay, it must equal at least one and one-half times their “regular rate” for each hour (or fraction thereof) of overtime. The regular rate includes all compensation received by the employee in the workweek with a few statutory exclusions. Overtime pay is based on hours worked in excess of 40 hours during a given workweek. [29 U.S.C. § 207(b)(1)]”- Payroll Answerbook
My employer offered me my job back but I would make more staying on Unemployment. Can I do this?
No. If you are offered work by your employer and refuse to accept it, without good cause, you may no longer be eligible for UC. Determining whether there was good cause for a refusal of work is driven by the facts of each claimant’s circumstances.
An employer is making employees sign a document stating that he is not liable if were to test positive for covid-19 and cannot submit a workers comp claim. Which means the employer wouldn’t have to pay for any time missed. Is this legal? Employees are being told that if they don’t sign, they will be terminated. They have already been working since May 1st, but just notified today.
Employees have the right to file a Workers’ Comp claim any time they feel they have contracted COVID-19 through exposure at work. Whether the Workers’ Comp carrier accepts or declines the claim is for theinsurance carrier to determine. I believe an employer who says they will terminate an individual’s employment if they exercise their right to file a claim would be illegal. Here is the LINK to PA WC addressing COVID-19.
EMPLOYEE LEAVE (FFCRA) & ADA
Does family and medical leave apply to this pandemic situation?
Employees requesting leave could conceivably be protected by the Family and Medical Leave Act (FMLA) to the extent they otherwise meet FMLA-eligibility requirements. Even in the absence of state or federal protection, an employer’s internal policies may extend protection to such individuals. Of course, there is nothing to prevent you from voluntarily extending an employee’s leave, even in the absence of any legal obligation.
Generally, employees are not entitled to take FMLA to stay at home to avoid getting sick. As with many employment laws, the worst thing an employer (or as is often the case, an untrained supervisor) can do at times like this is to reject immediately an unorthodox leave request before the facts are in. When in doubt, the wisest approach is to work with counsel to ensure legal compliance, thereby minimizing exposure to costly litigation.
Are FMLA employees required to use all their sick & vacation time before they’re able take FMLA? Does that same rule apply to the emergency FMLA offered?
Employees can use or an employer can force the use of sick time and PTO/Vacation when they request FMLA. However, the usage of time that is paid runs concurrently with the FMLA time. For FMLA extended leave, the only reason an individual would use the paid FMLA extended leave is for the loss of childcare and not for any other reason. The last ten weeks of FMLA is paid at 2/3 the employee’s regular wages to a $200 per day cap. Under the FFCRA, you are not permitted to require employees to exhaust their time first. This is paid FMLA leave unlike regular FMLA Leave which is unpaid.
How is an employee paid for time off to care for a child and is sick time capped at $200 per day when caring for a child?
Individuals who take the two weeks of Sick Time Paid Sick Leave to care for a child because the school and childcare are closed will be paid 2/3 100% of their regular wages up to a maximum of $200 per day for 80 hours. After the 80 hours are paid, and if the employee has asked to use the Paid Sick Leave as their first two weeks of FMLA, the remaining 10 weeks of Paid FMLA will be paid at 2/3 the employee’s regular rate up to a maximum of $200 per day. Employers may not require an employee to use their PTO or Sick Time or Vacation time during those first two weeks.
Is there a way to ensure an employee is eligible to use sick/FMLA time? Does this exclude companies under 50 employees? Is there an employee threshold?
Employees are still required to complete the FMLA paperwork. Employees must provide their employer documentation in support of your paid sick leave as specified in applicable IRS forms, instructions, and information. Employers may also require the employee to provide additional information in support of taking expanded family and medical leave taken to care for their child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19-related reasons.
Employers under 50 employees are not exempt from the expansion of FMLA. However, they can request a waiver. This is self-reporting and does not have to be given to any authority. Below is information as far as who can exempt and what requirements must be met and documented.
- Additional information on EFMLA
Employers must be smaller that 10,000 employee and the minimum loan will be $1M. The Federal Reserve requested feedback, so additional clarifications may be provided.
Should the leave time poster be handed out to all employees or should it be posted?
Leave posters must be conspicuously posted in the worksite and/or on the employer’s website or mailed or emailed to those who work remotely.
The sick leave/FMLA became law on 3/18/2020 and becomes effective on April 1st. and the notice should be posted for April 1st.
URGENT – EFFECTIVE IMMEDIATELY: Employers are now required to post in a conspicuous location in the workplace the attached poster that announces employees’ rights to Paid Sick leave and Emergency FMLA under the Families First Coronavirus Response Act (FFCRA). This poster has been issued by the Secretary of Labor pursuant to the FFCRA. More information and copies of the poster can be found HERE.
If your business has ceased physical operations due to Governor Wolf’s Order closing all non Life Sustaining businesses, you should place the poster on your intranet, email it to employees, or mail it to employees.
Does contraction of COVID-19 coronavirus implicate the ADA?
Generally, no, because in most cases the COVID-19 coronavirus is a transitory condition. However, some plaintiffs could make an argument that the ADA is implicated if the virus substantially limited a major life activity, such as breathing. Moreover, if an employer “regards” an employee with COVID-19 as being disabled, that could trigger ADA coverage.
May an employer encourage employees to telework as an infection-control strategy?
Yes. The EEOC has opined that telework is an effective infection-control strategy. The EEOC has also stated that employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic. If the employee works for a Life Sustaining business, the business should decide whether it is necessary to have the employee physically present at the worksite. Social distancing should be kept in mind.
Has DOL put out any guidance allowing “outside” salespeople to work remotely and keep the exemption?
Sales employees do work from home anyway in most scenarios, so employers should continue to pay salary. Employers should document and manage employee’s remote work habits; employees are still responsible for the employer’s expectations for work to be completed and for the number of work hours. The Fair Labor Standard Act is still in effect.
Employers with less than 500 employees that have been paying Emergency Family & Sick Leave under Families First Act and are applying for a PPP loan under the CARES Act. How do they calculate payroll costs in applying for PPP loan? Can they pay employees under FFCRA with PPP loan money and still be forgiven? Do they still get FFCRA refundable tax credits?
No, FFCRA paid leave will not count towards payroll costs when applying for a PPP loan. Additionally, PPP loan proceeds CANNOT be used to pay Emergency Family or Sick leave for which a tax credit is allowed.
Employers with less than 500 employees are considering the Employee Tax Retention Credit (ERTC) or Employee Tax Retention Credit (ERTC) instead of a PPP loan under the CARES Act. How do they calculate the credit for FFCRA and ERTC? Will the PPP loan still be eligible for forgiveness if the payroll tax credits are claimed?
Any wages paid under FFCRA that are eligible for a refundable tax credit CANNOT be used in the calculation of the ERTC credit.
If any part of the PPP loan is forgiven, then the employer is not eligible for the ERTC. Treasury needs to issue guidance regarding how credits taken prior to receiving a PPP loan will be treated. Taking the credit may impact the amount of forgiveness or their may be a method of repayment of the credit but given the current lack of guidance, this is still unclear.
Employers with less than 500 employees wants to defer employer social security (6.2% payroll tax) remittance under the CARES Act. The employer also applied for a PPP loan under the CARES Act. Can they defer payroll taxes related to wages paid with PPP funds? Will the PPP loan still be eligible for forgiveness if payroll taxes are deferred?
If any part of the PPP loan is forgiven, then the employer is not eligible for deferral program. Treasury needs to issue guidance regarding how deferred payments prior to receiving a PPP loan will be treated.
How does Unemployment Compensation and the Family First Coronavirus Response Act (FFCRA) application change for the workforce when the school year ends and summer begins? i.e. some day cares and summer camps are only going to be accepting limited numbers of children.
The FFCRA is in effect through the end of the year. If a parent needs to stay home, and cannot telework, to care for a child whose “place of care has been closed” or whose “child care provider is unavailable” then they are eligible for the two weeks of paid sick leave. This is paid at 2/3 the regular rate with a cap of $200/day and $2,000 in the aggregate.
- What is a “place of care”? : A “place of care” is a physical location in which care is provided for your child. The physical location does not have to be solely dedicated to such care. Examples include day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs.
- Who is my “child care provider”?: A “child care provider” is someone who cares for your child. This includes individuals paid to provide child care, like nannies, au pairs, and babysitters. It also includes individuals who provide child care at no cost and without a license on a regular basis, for example, grandparents, aunts, uncles, or neighbors.
If summer camp has limited enrollment or has decreased the weeks it is open, then it is “closed” as to your child. However, there is more than one summer camp in Central Pennsylvania. Employees should be encouraged to search for other “place of care” options.
Do we have any EEO concerns related to the COVID-19 coronavirus?
Employers cannot select employees for disparate treatment based on national origin. The CDC recently warned: “Do not show prejudice to people of Asian descent, because of fear of this new virus. Do not assume that someone of Asian descent is more likely to have COVID-19.”
Employers will need to closely monitor any concerns that employees of Asian descent are being subjected to disparate treatment or harassed in the workplace because of national origin. This may include employees avoiding other employees because of their national origin.
An employer may not base a decision to bar an employee from the workplace on the employee’s national origin. However, if an employee, regardless of their race or national origin, was recently in China and has symptoms of the COVID-19 coronavirus, you may have a legitimate reason to bar that employee from the workplace.
My workforce is unionized. Can my company make changes to unionized employees work schedules or duties in response to the COVID-19 coronavirus?
The NLRA imposes on employers the duty to bargain in good faith over mandatory subjects of bargaining such as wages, hours, and terms and conditions of employment. Generally speaking, employers who make unilateral changes to these facets of employment may be subject to unfair labor practice charges that would apply even in emergency situations such as this one, unless your collective bargaining agreement provides otherwise. Many collective bargaining agreements contain provisions that allow for employer flexibility in determining work assignments, scheduling, and layoffs. The first authority for determining your rights and obligations is your own collective bargaining agreement.
I have a “force majeure” clause in my contract. Does it cover an outbreak such as the COVID-19 coronavirus?
Possibly. A “force majeure” clause is a contract provision that relieves the parties from performing their contractual obligations when certain circumstances beyond their control arise, making performance inadvisable, commercially impracticable, illegal, or impossible. Whether an outbreak like the COVID-19 coronavirus triggers the force majeure clause in a contract, and the effect of that clause on the provisions of the contract, will vary significantly with each employer.
There is no force majeure clause in my contract. Does that mean I still have to abide by all of the contract provisions during the outbreak?
The general duty to bargain over changes in contractual terms may be suspended where compelling economic exigencies compel prompt action. The law views “compelling economic exigencies” as extraordinary, unforeseen events having a major economic effect that requires the employer to take immediate action and make a unilateral change.
Although an outbreak like the COVID-19 coronavirus would seem to fit the description of a “compelling economic exigency,” realize that its effect will be different for every employer. That is, while it may suspend the duty to bargain for one employer whose only facility was infected, it will likely not suspend the duty for an employer that has lost significant accounts or contracts as a result of the outbreak. In practice, the safest course of action (and the one most likely to avoid future litigation) is to notify the union in all cases, even if you believe that your particular situation fits into the “compelling economic exigency” category.
How much notice do I have to give the union before I make a change to my contract?
The law requires employers to give the union “adequate” notice of a proposed change to the collective bargaining agreement, so as to engage in meaningful bargaining over that change on request. There is no hard and fast rule as to how much notice is adequate. But where an employer can show a need for a prompt change and time is of the essence, a notice period as short as a couple of days might be considered adequate under the circumstances.
Wouldn’t our no-strike clause prohibit bargaining unit members from refusing to work?
That would likely depend on a host of factors ranging from the articulated rationale for withholding services to specific language within the no-strike clause itself. Most such provisions effectively preclude covered employees from striking or otherwise refusing to perform work as scheduled. By the same token, long-standing labor relations doctrine generally requires bargaining unit members to, “work now, and grieve later.”
That being said, such provisions do not necessarily trump those aspects within Section 13(a) of the OSHA Act entitling all employees to refuse to work if they reasonably believe they are in imminent danger, and compelling employees (particularly in high-risk industries) to report for work under such circumstances may also present adverse public relations implications. Consequently, circumstances like these are best examined on a case-by-case basis under advice of counsel and – in some circumstances, following dialogue with the authorized bargaining representative.
Do we have an obligation to provide notice under the WARN Act if we are forced to suspend operations on account of the coronavirus and its aftermath?
Yes, if your company is covered by the Worker Adjustment and Retraining Notification (WARN) Act. The federal WARN Act imposes a notice obligation on covered employers (those with 100 or more full-time employees) who implement a “plant closing” or “mass layoff” in certain situations, even when they are forced to do so for economic reasons. It is important to keep in mind that these quoted terms are defined extensively under WARN’s regulations, and that they are not intended to cover every single layoff or plant closing.
Generally speaking, employers must provide at least 60 calendar days of notice prior to any covered plant closing or mass layoff. Note, however, that if employees are laid off for less than six months, then they do not suffer an employment loss and, depending on the particular circumstances, notice may not be required. Unfortunately, in situations like this, it is hard to know how long the layoff will occur so providing notice is usually the best practice.
Fortunately, even in cases where its notice requirements would otherwise apply, the WARN Act provides a specific exception when layoffs occur due to unforeseeable business circumstances. This provision may apply to the COVID-19 coronavirus. But due to the fact-specific analysis required, this exception is often litigated.
Moreover, this exception is limited, in that an employer relying upon it must still provide “as much notice as is practicable, and at that time shall give a brief statement of the basis for reducing the notification period.” In other words, once you are in a position to evaluate the immediate impact of the outbreak upon your workforce, you must then provide specific notice to “affected employees.” You must also provide a statement explaining the failure to provide more extensive notice, which in this case would obviously be tied to the unforeseeable nature of the outbreak and its aftermath.
The WARN Act has specific provisions requiring notice to employees, unions and certain government entities. The Act further specifies the information that must be contained in each notice. Keep in mind that some states have “mini-WARN” laws that may apply. Please work with your employment counsel to ensure compliance notices are provided.
PA State WARN Act Requirements
Will this law really be enforced this law in light of the outbreak?
In the aftermath of an outbreak, the extent to which the USDOL will focus upon enforcement of the WARN Act remains to be seen. Nonetheless, the law provides stiff penalties for non-compliance, including up to 60 days of back pay and benefits, along with a civil penalty of up to $500 per day. More importantly, it provides for a private cause of action in federal court, suggesting that employers may soon be responding to lawsuits arising under the WARN Act regardless of the enforcing agency’s official position.
Consequently, we advise that you evaluate your current situations to ascertain whether the most recent outbreak has triggered a WARN Act qualifying event in your organization. If so, provide as much notice to affected employees as is practicable under the circumstances. When in doubt, the best approach is to work through counsel to arrive at a safe but practical solution to a potentially thorny situation for many employers that are impacted by the outbreak, either directly or indirectly.
Can EIDL loans can be re-financed into PPP loans and is there any risk to applying for an EIDL loan and re-financing to a PPP loan later? Would this be better than applying for a PPP loan directly?
If you received an SBA loan made between January 31, 2020 and April 3, 2020 you can apply for a PPP loan. If your EIDL loan was not used for payroll costs, it doesn’t affect your eligibility for a PPP loan. If your EIDL loan was used for payroll costs, your PPP loan must be used to refinance your EIDL loan. Proceeds from any advance up to $10,000 on the EIDL loan will be deducted from the loan forgiveness amount of the PPP loan. The major benefit of applying for a EIDL loan now and re-financing it is the $10,000 you receive within 3 days of the loan being approved (may be longer). You will need to be able to prove that the EIDL loan was not used for payroll if you intend to utilize both facilities. In the event you do plan to use both facilities for payroll, you will have to refinance the loan into the EIDL Refinancing the EIDL loan into a PPP loan could slow down the underwriting process for the PPP, although this would not be the case if you are just applying for the EIDL at the same time as the PPP.
If you have verifiable expenses for which to use the EIDL loan then it would be worthwhile to apply for both, if you were intending on using it for the purpose of refinancing into the PPP, the benefit would be the $10,000 up front, which given the timing now that the PPP is available may not hit before the PPP funds are disbursed given the uncertainty of funding timing across both facilities. Net / net, you will lose the $10k advance from your EIDL in your
forgivable portion of the PPP.
What form are we basing payroll costs for the last year? Is it PAUC or 941? Federal 941
Is the PPP applicable to self-employed individuals operating as single member LLCs?
The Paycheck Protection Loan is applicable, the program is starting April 10, 2020 for independent contractors and self-employed individuals. Reach out to your bank as the available funding has a cap.
Are non-profits or private schools eligible for PPP loans?
Yes, 501c3 charitable non-profits, religious organizations and veterans’ organizations. Trade associations or professional associations who are typically 501c6 or 501c4 nonprofits are not eligible.
Businesses that are closed and do not anticipate reopening until 6/30 and will rehiring employees at that time, What will happen to the 8 week window to calculate payroll for the purpose of loan forgiveness?
The payroll during the 8 weeks will be based on how much was paid to employees in cash during the period – whether the company was open for business or not. The purpose of the
Act is to ensure employees are being paid during this especially difficult time. If payroll is not paid, then qualified expenses will be lower, and forgiveness of the loan may end up being less due to FTE test and compensation reduction test.