Labor Implications of the Coronavirus Pandemic

Webinar Summary
Panelists Brad Hammock, Jim Paretti, and Libby Henninger of Littler Mendelson provided up-to-the-minute suggestions and guidance on the labor and employment implications of the coronavirus pandemic and in light of current law. The panelists outlined current OSHA and CDC guidance for businesses on what to do if an employee became symptomatic or sick with COVID-19, and how businesses are now required to comply with new paid sick leave and emergency Family and Medical Leave Act (FMLA) mandates. The panelists also detailed the wage and hour considerations mandated by recent legislative actions, and defined key terms and compliance relevant to businesses considering furloughs, layoffs, and temporary reductions and/or alterations in scheduling for exempt and non-exempt employees.

Below are key bullet points from the webinar –

• CDC and OSHA offers guidance for dealing with employees who are sick or symptomatic with COVID-19, and directions on the dissemination of information and cleaning/disinfecting procedures
• New FMLA and Paid Sick Leave rules – passed in phase 1 and phase 2 coronavirus legislation in recent days - outline the reasons allowed for patients, and parents, to take advantage of sick leave and family leave to care for those with COVID-19, as well as the eligibility thresholds for employers and employees
• Be sure to understand the differences in wage and hour changes you undertake that might affect your business, hiring, and employees, including: furlough; layoff; notice requirements; exempt and non-exempt status compliance; base-level salary requirements; benefits and unemployment insurance considerations

Full Bullets -

• Littler Mendelson panelists discuss their update and perspectives on labor and employment amid the public health crisis due to COVID-19.
• Agenda
  • Where we are right now
  • OSHA/Safety&Health
    • Approach to exposures
    • Guidance and recommendations from CDC and OSHA
    • How to react to employee who presents Covid-19 symptoms
      • Symptoms presented
      • Remain home until 24 hours symptom free without use of medicine
      • Do not alert or self-quarantine other employees
      • Do not clean or disinfect job site
    • If employee tests positive
      • Self-quarantine
      • Take contact analysis of employee exposures
      • Direct contacted employees to self-quarantine for 14 days from last contact
      • Do not disclose identity of confirmed positive, but make clear they are advised to seek medical care
      • Clean and disinfect office/space involved
    • If employee has close/direct contact with confirmed Covid-19 individual
      • Direct employee to quarantine for 14 days from last contact
      • Encourage employees to seek care if exhibiting symptoms especially
      • Unless they test positive, do not alert or self-quarantine any other employees
    • Cleaning/Disinfecting
      • Close off areas used by sick person
      • Open doors/windows to increase circulation and wait 24 hours before you clean
      • Wear gloves and gowns for cleaning processes
      • Clean areas that sick person interacted with
      • Educate workers performing cleaning/laundry/trash pickup
      • Managers should talk to employees about what takes place if infected, developed policies for worker protections
  • FMLA, Sick Leave Rules
    • FFCRA
      • Emergency Paid Leave Program – 80 hours; 6 different reasons; full pay or 2/3 pay
      • Emergency Paid FMLA – Up to 12 weeks; 1 reason; Weeks 1-2 unpaid; Weeks 3-12 is 2/3 pay
    • Who’s eligible – employee is eligible on day one of employment
      • Part time/full time: included
      • Temporary and seasonal: included
      • Staffing companies
    • Listed 6 reasons – direct or potential exposure to Covid-19; self-quarantine; result of medical diagnosis; school closure; child care
    • New law does not address whether employers can request documentation or what documentation employees must provide to support need for leave
      • FMLA has never before covered school/child care closing
      • State and local paid sick leave laws vary with respect to documentation rules
    • Paid Sick Leave Sequencing
      • Employer must allow employee to use EPSL provided for under this new leave law
      • The employee cannot require the employee to use accrued PTO /sick leave
      • Does not account or employers with generous paid leave policies
    • EFMLA
      • First 10 days unpaid
    • Applies to businesses with fewer than 500 employees
    • Employer will be able to take refundable tax credit equal to 100% of qualified EPSL and FMLA+ leave
      • Practical implementation concerns
    • Employers will recoup these payments immediately by keeping a portion of the deposit they otherwise would pay as part of their employees’ federal, social security and Medicare taxes
    • Exempting businesses with less than 50 employees?
    • Unclear whether some states will also offer tax relief for compliance
  • Wage and Hour issues
    • Full shutdown, partial shutdown, WFH arrangement with employees
    • Furlough: involves reducing days or weeks an employee may work
      • Finite period of time to take employee off schedule
    • Layoff: can be temporary or permanent
      • Severance of employment relationship
    • Employers may also consider reducing daily hours of some employees
      • Notice this information that their schedules or salaries are reduced
    • Think about unemployment benefits
    • Notice requirements – both furlough and layoff can trigger notice requirements
      • You may need to notice unemployment benefits to employees, or a discontinuance of insurance benefits, so notice of COBRA also might apply
    • Exempt and nonexempt status compliance
      • Exempt manager may not retain exempt status if workload is changed
    • Can you reduce workload of exempt employees?
      • Exempt employees have to be paid at salary base level, some states have higher
      • If you reduce salary and work hours, it may impact their exempt status. You can adjust the schedule, but don’t do it regularly
      • You can convert exempt employees to non-exempt
    • Notice requirements – both time windows, and some employee signature and acknowledgement requirements
  • What’s next?