A Season of Change for Human Resources

On Saturday, June 20, we marked the official start of summer.  That day is known as the summer solstice, the longest day of the year and the day on which the sun reaches its highest and northernmost points in the sky.  With the start of summer, we close out spring and we turn to thoughts of pool parties, backyard cookouts, and summer vacations.  This summer, though, has a different feel and a different approach in light of COVID-19; and with the start of this particular summer, we look back on a monumental spring of change for Human Resources professionals everywhere.

The most pressing question facing HR professionals is, “Where are we now?”  More specifically, what should HR professionals know as we move into the second half of 2020 and what new requirements do HR professionals have? Much like the summer solstice, this blog will be long…but the information is invaluable to your compliance efforts.  Things also could change, so we encourage you to monitor updates and reach out to us if you have any questions about the current status of any of the areas discussed in this blog.

The blog is broken down into the following areas (in case you want to scroll to a specific question area):

  1. Families First Coronavirus Response Act
  2. OSHA Return to Work Guidance and Requirements
  3. ADA Considerations
  4. LGBTQ Anti-Discrimination Protection
  5. Local Paid Sick Leave Ordinances.

  1. Families First Coronavirus Response Act

The Families First Coronavirus Response Act (“FFCRA”) became law on March 18, 2020 and remains in effect through December 31, 2020.  Although many of your employees may have utilized this leave during the initial months of the COVID-19 outbreak (i.e., March and April 2020), you should still remain mindful of this law’s requirements since it remains in effect through the end of this year and may again become a focus as COVID-19 cases spike throughout the country and as we move into the fall and the start of school.

The law includes the following two relevant provisions that we will discuss below: Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act.

The law allows employers that employ health care providers or emergency responders to exclude such employees from the provisions of this law.

With respect to recordkeeping requirements related to the FFCRA, all supporting documentation (regardless whether the leave was granted or denied) must be maintained for four years.  If the employee provided oral statements to support a request, the employer should document those oral statements and maintain that information for four years.

Emergency Family and Medical Leave Expansion Act

The Emergency Family and Medical Leave Expansion Act (“EFMLEA”) applies to employers with fewer than 500 employees and government employers.  It serves as an expansion on the existing Family and Medical Leave Act.  The 12 weeks of leave available under the EFMLEA is not an additional 12 weeks above and beyond the 12 provided by the FMLA.  Rather, employees are eligible for a total of 12 weeks of FMLA leave in a 12-month period (calendar or rolling), including EFMLEA leave.  Thus, if an employee has already utilized some FMLA leave in the calendar year, that amount of leave would reduce the 12 weeks available to the employee under the EFMLEA.  Notably, however, the DOL has indicated that no more than 12 weeks may be used for the EFMLEA purposes (meaning if the employer’s calendar year ends during the April 1, 2020 – December 31, 2020 time period, an employee is not entitled to a new 12 weeks for EFMLEA purposes.

Employers that have fewer than 50 employees are exempt from the EFMLEA leave requirements only if one of the three following conditions are met:

  1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

The EFMLEA changes the FMLA definition of “eligible employee” with respect to the EFMLEA provisions.  Eligible employees are those who have been employed by the employer for 30 calendar days.  Eligible employees also include those that were laid off after March 1, 2020 but rehired before December 31, 2020, if they had been on the employer’s payroll for 30 or more of the 60 calendar days prior to the date of layoff.

The EFMLEA provides 12 weeks of FMLA leave to employees (who are unable to work or telework) to care for an employee’s child under 18 years of age if the child’s school or childcare facility is closed or unavailable due to COVID-19.  “Child” also includes those over 18 years old who are incapable of self-care due to a mental or physical disability.

A “child care provider” does not have to be compensated or licensed if he or she is a family member or friend who regularly cares for the employee’s child.  So, if an employee’s family member or friend who regularly cares for the employee’s child is no longer available due to COVID-19, the employee will be eligible for paid sick leave or paid family leave under the FFCRA if the employee is unable to work or telework due to this unavailability.  An employee can only utilize this leave, however, when no other suitable person is available to care for the child during the period of leave. Examples of suitable individuals include co-parents, co-guardians, or the usual childcare provider.

An employee is able to telework if: (a) his or her employer has work for the employee, (b) the employer permits the employee to work from the employee’s location, and (c), there are no extenuating circumstances that prevent the employee from performing the work.

Intermittent leave is only available if the employer and employee agree.  In addition, the increments for intermittent leave must also be agreed upon by employer and employee.

The typical FMLA job restoration requirements (i.e., to return an employee to the same or equivalent position) do not apply to employers with fewer than 25 employees if (1) the employee’s position doesn’t exist because of economic conditions or changes due to COVID-19, (2) the employer makes reasonable efforts to restore the employee to an equivalent position, and (3) if reasonable efforts fail, the employer makes reasonable efforts during the proscribed period to contact the employee and notify him or her of an available equivalent position.  The “proscribed period” referenced in #3 is the earlier of 1 year following (1) the date on which the employee’s use of the leave ends, or (2) 12 weeks after the date on which the employee’s leave begins.

Under the Emergency Family and Medical Leave Expansion Act, the first 2 weeks (defined in the law as 10 days) of leave is unpaid.  Employees, however, can elect to use available paid leave during the first two weeks.  After the first 2 weeks, the leave is paid.  The pay is at a rate equal to at least 2/3 of the employee’s regular pay and it is capped at $200 per day ($10,000 total).  The hours calculation is the “number of hours the employee would otherwise be normally scheduled to work.”  So, if an employee is normally scheduled to work 30 hours per week, the pay would be 2/3 of the employee’s regular rate per hour for 30 hours per week capped at $200 per day.

The law requires that when the need for leave is foreseeable, employees provide notice of their need for leave as soon as practicable.

The DOL temporary regulations outlined the documentation an employee must provide.  This documentation is as follows: (1) Employee’s name, (2) date(s) for which the leave is requested, (3) qualifying reason for the leave, (4) an oral or written statement that the employee is unable to work because of the qualified reason for the leave, (5) the name of the son or daughter being cared for, (6) the name of the school or child care provider that has closed or become unavailable, and (7) a representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes the leave.

The DOL also outlined that an employer may request any additional supporting material from the employee that is needed to support a request for the FFCRA tax credits and the employer is not required to provide the leave if materials sufficient to support the applicable tax credit have not been provided.  Per the IRS, this information is, in addition to all the above, with respect to an employee’s inability to provide care for a child older than 14 during daylight hours, a statement that special circumstances exist requiring the employee to provide care.

            Emergency Paid Sick Leave Act

The Emergency Paid Sick Leave Act (“EPSLA”) applies to employers with fewer than 500 employees and government employers.

The law requires 2 weeks (defined in the law as 10 days) of paid sick leave for any employee who is unable to work or telework due to any of the following reasons:

  1. The employee is subject to a federal, state, or local order to quarantine or isolate
  2. The employee has been advised by a health care provider to self-quarantine
  3. The employee has symptoms of COVID-19 and is seeking diagnosis
  4. The employee is caring for an individual who qualifies under #1 or #2 above
  5. The employee is caring for a child whose school or childcare facility has closed as a result of COVID-19
  6. The employee is experiencing other substantially similar conditions as specified by the Secretary of Health and Human Services, Secretary of Treasury and Secretary of Labor

The small business exception outlined in the EFMLEA discussion (i.e., for employers with fewer 50 employees), also applies to the EPSLA but only for Reason #5.

With respect to Reason #1, any shelter-in-place and/or stay-at-home orders do constitute federal, state, or local orders of quarantine or isolation.  That said, if the shelter-in-place and/or stay-at-home order results in the shutdown of the business, the DOL holds that no work is available and, thus, the employee is not eligible for paid sick leave.  It is likely that when shelter-in-place and/or stay-at-home orders are in effect, qualification under Reason #1 would have to be in the limited situation where the employer is deemed an essential business and, thus, permitted to stay open but the employee in question is not providing essential products or services to the employer and, thus, is not permitted to work pursuant to the shelter-in-place and/or stay-at-home order.

With respect to Reason #2, the advice to self-quarantine must be based on a belief that (a) the employee has COVID-19, (b) the employee may have COVID-19, or (c) the employee is particularly vulnerable to COVID-19.

With respect to Reason #3, the symptoms experienced must be fever, dry cough, shortness of breath, or any other COVID-19 symptoms identified by the U.S. Centers for Disease Control and Prevention.  Furthermore, leave based on this reason is limited to the time the employee is unable to work because he or she is taking affirmative steps to seek a medical diagnosis, such as making, waiting for, or attending an appointment for a COVID-19 test.

With respect to Reason #4, the “individual” must be a family member of the employee, someone who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship such that it creates an expectation the employee would care for the individual.  “Individual” does not include people with whom the employee has no personal relationship.

With respect to Reason #5, any guidance and/or regulations applicable to the EFLMEA, would equally apply in this instance.

At the current time, there is no application of Reason #6 since no “substantially similar conditions” have been identified by the HHS Department, the Treasury Department, or the Department of Labor.

The amount of hours of paid sick leave available to an employee is calculated as 80 hours for full-time employees and is calculated for part-time employees as the average number of hours the employee works over a two-week period.  For reasons #1, #2, and #3, the pay is at the employee’s regular rate of pay and is capped at $511 per day ($5,110 total).

For reasons #4, #5 or #6, the pay is at the rate of at least 2/3 of the employee’s regular rate and is capped at $200 per day ($2,000 total).

The EPSLA does not permit carryover of the leave past 2020 and it does not require employers to pay unused sick leave at employment separation.  Importantly, employees would be permitted to use the paid sick leave provided under this law before using any other available leave and employers cannot require employees to use pre-existing paid sick leave first.

Additionally, this law prohibits employers from requiring employees to search for or find replacements and the law prohibits discrimination and retaliation against employees for utilizing the sick leave provided or for opposing unlawful practices related to this law.  Any violations of this law would be considered a violation of the FLSA, which would subject employers to damages for back pay, liquidated damages in an amount equal to back pay, and attorney’s fees.

The EPSLA does not pre-empt state or local sick leave laws, nor does it preempt existing employer policies.

After an employee receives his or her first paid sick leave day, employers are permitted to require that employee to follow reasonable notice procedures in order to continue receiving paid sick time.

The DOL temporary regulations outlined the documentation an employee must provide.  This documentation is as follows: (1) Employee’s name, (2) date(s) for which the leave is requested, (3) qualifying reason for the leave, (4) an oral or written statement that the employee is unable to work because of the qualified reason for the leave, and:

  • For leave related to a government order to quarantine or isolate – The name of the government entity that issued the quarantine or isolation order
  • For leave related to a healthcare provider’s advice to self-quarantine – The name of the health care provider
  • For leave to care for an individual subject to Reason #1 or Reason #2 – The name of the government entity that issued the quarantine or isolation order to which the individual being cared for is subject OR the name of the health care provider who advised self-quarantine for the individual being cared for
  1. Federal, State, and Local Return to Work Guidance and Requirements

Guidance and requirements on returning to work changes regularly and as such, you should monitor releases from the various government agencies.  Of course, you can always reach out to us if you have any questions about current requirements.

Federal Guidance and Requirements

The Occupational Safety & Health Act (“OSHA”) applies to all employers and the provision applicable in this case is the General Duty Clause, Section 5(a)(1).  This provision requires employers to provide employees with a workplace free from recognized hazards likely to cause death or serious physical injury.  COVID-19 clearly is a recognized hazard.

While it is important to understand that guidance from the DOL is not law, courts are likely to use that guidance as instructive in evaluating any lawsuits filed under OSHA.  As such, it is a good idea to follow the guidance as best as possible.

The OSHA guidance is available here.  The guidance recommends a phased reopening with implementation suggestions within each phase.  At the end of the day, employers should be performing a full hazard and safety assessment of the workplace, implement safety controls which include, among other things, physical distancing, enhanced cleanings, face coverings, reduced or eliminated travel, increased telework, and temperature screenings (if desired).

It is important to note that OSHA does not consider cloth face coverings as personal protective equipment, thus they are not subject to requirements for training and employers are not required to pay for such coverings (subject to applicable law; in Texas, no such requirement exists).

In the event you elect to conduct temperature screenings, be aware that if such screenings are conducted by a physician, nurse, or other health care personnel and such screenings are recorded, then the records must be kept for a period of 30 years following termination of the employee’s employment.

Employers must also record and report COVID-19 positive cases in their workplaces in certain instances.  As an employer, you are subject to the recording requirements if you are a private sector employer (i.e., non-governmental) UNLESS (1) you had 10 or fewer employees at all times in the previous calendar year or (2) your business is identified in the list of exempt industries here.

That said, even if you are exempt from the OSHA recording requirements pursuant to 1 or 2 above, you still must comply with the recording obligations for a COVID-19 positive that results in (1) a fatality, (2) an employee’s in-patient hospitalization, (3) an amputation, or (4) the loss of an eye.

With that understanding, OSHA’s new guidance now requires the recording/reporting of a COVID-19 positive if three conditions exist:

  1. The case is a confirmed case of COVID-19 as defined by the CDC;
  2. The case is work related as defined by OSHA regulations; and
  3. The case involves one or more of the general recording criteria set forth in the OSHA regulations, which means the COVID-19 illness results in death of the employee, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or the loss of consciousness.

The first and third conditions likely will be easy to establish in the event one of your employees contracts COVID-19.  The more difficult question is whether the case is work related.  The OSHA regulations state that an illness or injury is work related “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.”

In OSHA’s new guidance, all employers (rather than specific industries identified in OSHA’s previous guidance) must make an effort to determine (i.e., inquire and/or investigate) work relatedness.

An extensive investigation is not necessary, but some examination and inquiry are necessary.  Essentially, you want to (1) to ask the employee how he believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee’s work environment for potential COVID-19 exposure.

Here is OSHA guidance on when things are work related:

  • COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

Here is OSHA guidance on when things are not work related:

  • An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
  • An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.

As the guidance states, “[i]f, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.”

State Guidance and Requirements

The State of Texas regularly issues guidance for employers regarding reopening.  Again, while none of the guidance is law, it will assist employers in avoiding claims of negligence.  The regularly updated guidance can be found here.

Furthermore, as of June 26, 2020 and until further notice from the Governor (which can be found at the link above), businesses in Texas (absent some exceptions) are limited to 50% occupancy.

Local Guidance and Requirements

Various Texas counties and municipalities have issued orders that mandate businesses in their respective localities must require employees of the business and visitors to the business wear face coverings.  Failure to abide by the mandate can result in a fine to the business.  While further counties and cities may issue requirements, as of the writing of this blog, the following locations had such a face-covering requirement: Bexar County, Cameron County, Dallas County, El Paso County, Harris County, Hidalgo County, Tarrant County, Travis County, and the City of Denton.  If you are unsure whether or not your city or county has a face coverings order, please reach out to us.

  1. ADA Considerations

Historically, the Americans with Disabilities Act typically limits medical inquiries and medical examinations.  There is an exception, however, when reliable information gives rise to a reasonable belief that an employee poses a direct threat due to a medical condition.  In that instance, medical inquiries can be made and medical examinations can be conducted. COVID-19 is considered such a direct threat.

Accordingly, employers currently can take their employees’ temperatures and/or require employees to take a COVID-19 test.  However, employers are not permitted to require employees to submit to a COVID-19 antibodies test.

Employers should be aware that the allowances for temperatures and COVID-19 tests are considered temporary and could be removed at any time.  We encourage you to stay up to date.

  1. LGBTQ Anti-Discrimination Protection

On June 15, 2020, the U.S. Supreme Court today issued a 6-3 opinion in which the Court extended Title VII’s anti-discrimination protections to LGBTQ workers.  The majority decided the case on a very simple basis – Title VII prohibits discrimination against LGBTQ workers because such discrimination is discrimination based on sex.  The relevant language from Justice Gorsuch’s opinion below explains:

An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.

Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

In the majority opinion, Justice Gorsuch raised the prospect that religious institutions or companies seeking to exercise religious rights might challenge application of this decision.  This would be akin to Hobby Lobby’s previous challenge to the birth control aspects of the Affordable Care Act.  Justice Gorsuch noted, however, that such a challenge is a separate matter and a separate case and was not before the Court in this decision.  So, stay tuned because we could see additional court action on this issue much further down the road.

For now, if your workplace policies and employee handbook do not already prohibit discrimination based on sexual orientation, transgender status, or gender identity, you should immediately update your policies.  In addition, you should implement training in the workplace to ensure that all employees know and understand that discrimination based on these protected categories is illegal and prohibited.

  1. Local Paid Sick Leave Ordinances

On March 30th, the U.S. District Court for the Eastern District of Texas (Sherman Division) granted a preliminary injunction which halted enforcement of the Dallas Paid Sick Leave Ordinance.  Until further orders from the Court, that ordinance cannot be enforced.

On June 5th, the Texas Supreme Court denied the City of Austin’s appeal, which means the 3rd District Court of Appeals decision stands, which halted enforcement of the Austin Paid Sick Leave Ordinance.

In addition to these two cases, there is litigation pending in San Antonio at the 4th District Court of Appeals regarding the halted San Antonio Paid Sick Leave Ordinance.

There is a lot of legal maneuvering yet to occur but for practical purposes, none of the local paid sick leave ordinances (Dallas, Austin, San Antonio) are currently in effect.  As such, as an employer, you do not need to worry about these ordinances.

However, you should stay tuned because depending upon the legal action still taking place, things could change.

We believe that ultimately, however, either the Texas Supreme Court or the Texas Legislature (when it meets again starting in January 2021) will prohibit any city or county law from creating paid sick leave requirements for private businesses.

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