COVID-19 Update

As the COVID-19 pandemic continues throughout the country, employers have continued to adapt and “change” has become the norm.  Now is a good time to take stock of where we are and what employers need to know about COVID-19 in the workplace.

Families First Coronavirus Response Act

As a reminder, the Families First Coronavirus Response Act remains in effect through December 31, 2020.  There is potential that the current Congress or, more likely, the next Congress could either extend the law or pass further protections, but nothing is certain at this point.  It is important to keep in mind, though, that even without further action, many employers will experience workers utilizing FFCRA leave through the end of the year.

We recommend that all employers regularly check the Department of Labor’s FFCRA Question and Answer site at the following link: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.  This site is a great source of current guidance from the DOL on all things FFCRA.  In fact, recent updates addressed the virtual learning that is occurring in schools throughout the country.  First, the DOL confirmed that if an FFCRA eligible employee’s child is subject to a hybrid learning environment (i.e., some days virtual, some days live), the school is deemed to be closed or unavailable on the virtual days and, thus, the employee is eligible for FFCRA leave.  The DOL also confirmed that if an employee’s child’s school is giving the option of virtual or in-person learning and the employee chooses virtual learning, the school is not closed or unavailable and, thus, the employee is not eligible for FFCRA leave.

The DOL also recently updated the site after it issued revised regulations following a New York court decision.  On August 3, 2020, a New York federal court issued a decision invalidating various aspects of the FFCRA regulations. Following that decision, the DOL issued revised regulations that went into effect on September 16, 2020.  The revised regulations outlined the following:

1. The DOL reaffirmed that FFCRA leave is only available to an employee if the employee has work from which to take leave.  The DOL clarified that the reason for the qualifying leave must be the “but for” cause of the employee’s inability to work.  So, if the employer does not have work available, the employee is not qualified for FFCRA leave.  The updated regulation reaffirms also that employers cannot simply make work unavailable to avoid FFCRA-qualifying leave…this would be retaliation.
2. The DOL reaffirmed that intermittent FFCRA leave can only be used by the employee with the employer’s approval.  The DOL relied on FMLA regulations and interpretations in reaching this decision.  The DOL also relied on the fact that the point of intermittent leave is to avoid disrupting the employer’s operations as much as possible.
3. The DOL revised the definition of a “health care provider” for purposes of exempting health care providers from the FFCRA.  The focus now is on the roles and duties of the employee, not the operations of the employer.  The definition of health care provider is now the definition found in 29 C.F.R. 825.102, which can be found here: https://www.law.cornell.edu/cfr/text/29/825.102.  In addition, “health care provider” includes employees providing diagnostic services, preventative services, treatment services, or other services integrated with and necessary to the provision of patient care (i.e., something along the lines of a laboratory technician).  You should review the attachment to see great examples and explanations of those additional categories.  The DOL did clarify that “health care providers” does not include IT, maintenance, HR, food service, billing, cooks, records managers, and consultants of health care entities.  The DOL also indicated that the list of types of jobs not included was merely illustrative and not exhaustive.  The moral of the story is that the definition of “health care provider” has been narrowed significantly.
4. The DOL also revised the regulations to indicate that the required information an employee must provide to support the leave must be givenas soon as practicable…rather than prior to the need for leave.  The DOL did clarify, though, that as soon as practicable may in some cases mean prior to when the need for leave is foreseeable.

All other aspects of the regulations remained the same.

ADA Considerations

The EEOC recently confirmed that employers are not permitted to ask employees if they have family members who are COVID positive or are experiencing COVID symptoms.  This would constitute a violation of the Genetic Information Nondiscrimination Act.  That said, employers may ask employers generally if they have been in contact with anyone that is COVID positive or experiencing COVID symptoms.

OSHA and Liability Waivers

Employers should be aware that requiring employees to sign a liability waiver upon returning to the workplace does not preclude employees from filing claims with OSHA against the employer.

More so than most things, we encourage you to stay up to date when it comes to employment laws and workplace rules related to COVID-19.  In light of the constantly evolving situation, interpretations by relevant agencies are likely to change as well.