Author: Meaghan Kramer

EMPLOYER’S DUTIES TO MAINTAIN A SAFE AND COMPLIANT WORKPLACE DURING THE COVID-19 PANDEMIC

April 14, 2020

The COVID-19 pandemic has created a number of logistical and financial headaches for employers, not the least of which is how to comply with duties to keep their employees safe.  The maze of federal laws governing health and safety may cause many employers to be fearful of unknowingly acting in a manner that is violative of these laws. Below is a brief summary of guidance provided by the governing agencies that will assist employers in making informed decisions when deciding how to protect their employees and comply with the law. Employers should review all the categories, as compliance with one does not ensure compliance with another.

1. CDC Guidance

When an employer has a positive case of COVID-19 in the workplace, the Centers for Disease Control and Preventions (“CDC”) has recommended that the employer promptly inform fellow employees of their possible exposure to COVID-19, but maintain confidentiality as to the identity of the infected employee as required by the Americans with Disabilities Act (“ADA”). To the extent possible, the employer should ask the infected employee to create a list of employees, clients, vendors, etc. who may have been exposed to the virus. The employer should then recommend that exposed persons and co-workers self-monitor for symptoms (e.g., fever, cough, or shortness of breath). Additional CDC Guidance may be found here.

The workplace itself must also be addressed by employers.  The CDC has issued some guidance regarding cleaning and disinfection practices in the workplace, which can be found here.

2. Employer responsibilities under the Americans with Disabilities Act and EEOC Guidelines

The Americans with Disabilities Act (“ADA”) prohibits an employer from making disability-related inquiries and requiring medical examinations of employees, except under limited circumstances, including where an employee poses a “direct threat” to the health or safety of the individual or others (without a reasonable accommodation).

U.S. Equal Employment Opportunity Commission (“EEOC”) has determined that the COVID-19 pandemic meets the direct threat standard. During the COVID-19 pandemic the EEOC has advised that employers are permitted to do the following:

  • Send employees home if they have COVID-19 symptoms;
  • Ask employees who call in sick about their symptoms, including, for example, fever, chills, cough, shortness of breath, or sore throat;
  • Measure employees’ body temperatures, with the caveat that if an employee has a fever or other symptoms, the ADA confidentiality requirements will apply;
  • Follow the advice of the CDC, and local health authorities regarding whether to allow employees who have returned from travel (both work and pleasure) to return to the workplace;
  • Encourage employees to telework; and
  • Require employees to wash their hands often and/or wear personal protective equipment (including masks).

While the EEOC does not specifically address whether coworkers or customers can be informed of a positive case of COVID-19, it may be appropriate to do so, as long as the employer can ensure the confidentiality of the infected employee. Click here to review the EEOC’s guidelines regarding Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, which has been updated to address issues specifically related to the COVID-19 Pandemic.

In addition, the EEOC has encouraged employers to review their recently updated guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

3. Employer responsibilities under OSHA

As employers know, the Occupational Safety and Health Act (“OSHA”) requires that employers provide safe and healthful workplaces for their employees. OSHA also requires that workplace illnesses be reported to the agency. On February 10, 2020, OSHA issued guidance to employers providing that COVID-19 cases need not be reported to OSHA as workplace illnesses, unless:

a. Employees are workers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions whereby employers must continue to make work-relatedness determinations pursuant to 29 CFR § 1904; or

b. There is objective evidence that employee’s COVID-19 case may in fact be work-related.

Click here to review OSHA’s Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19).

Worth noting, OSHA prohibits employers from retaliating against workers for raising concerns about safety and health conditions. OSHA urges employers to review its publication, Recommended Practices for Anti-Retaliation Programs.

About the Author: Meaghan Kramer assists clients with employment law and commercial litigation matters. Meaghan is advising clients on workplace related legal issues arising from COVID-19. Meaghan writes about employment issues, including safeguarding workplace confidences, and creating work environments that are free from discrimination and harassment. mkramer@eblawyers.com | 602.222.4995

Disclaimer: This article is not legal advice and is only for general, non-specific informational purposes. It is not intended to cover all the issues related to the topic discussed. If you have a legal matter, the specific facts that apply to you may require legal knowledge not addressed by this article. If you need legal advice, consult with a lawyer.

EXPANDED UNEMPLOYMENT INSURANCE UNDER THE NEW CORONAVIRUS AID, RELIEF, AND ECONOMIC SECURITY (“CARES”) ACT

April 9, 2020

The CARES Act, which was signed into law on March 27, 2020, expanded eligibility for unemployment benefits, and increased the amount of unemployment benefits that eligible individuals may receive. The CARES Act increased unemployment benefits, and access to unemployment benefits for millions of Americans affected by the COVID-19 crisis in three primary ways:

  1. Pandemic Unemployment Assistance: Extended eligibility for people who have traditionally been ineligible for unemployment insurance benefits (including the self-employed and independent contractors);
  2. Pandemic Unemployment Compensation: An additional $600 per week, on top of regular benefits, to all unemployment insurance recipients; and
  3. Pandemic Emergency Unemployment Compensation: An additional 13 weeks of unemployment insurance benefits, beyond the regular 26 weeks already provided, for a total of 39 weeks of coverage.

Individuals are eligible for Pandemic Unemployment Assistance if they are able to work, but cannot work because they:

  • Are diagnosed COVID-19 or have COVID-19 symptoms and are seeking diagnosis;
  • Have a member of the household who is diagnosed with COVID-19;
  • Are providing care for a family or household member diagnosed with COVID-19;
  • Are the primary caregiver for a child whose school or care facility closed, due to COVID-19;
  • Are unable to reach their place of employment due to an imposed quarantine, or medically-recommended quarantine related to COVID-19;
  • Were scheduled to start new employment and cannot reach the workplace as a result of COVID-19;
  • Became the major breadwinner because the head of household died from COVID-19;
  • Quit their job as a direct result of COVID-19;
  • Had their place of employment closed as a direct result of COVID-19; or
  • Meet any additional criteria specified by U.S. Secretary of Labor.

Individuals who can work remotely, or who are receiving paid sick or other paid leave benefits are not eligible.

Pandemic Unemployment Compensation provides individuals with an additional $600 per week, on top of the weekly benefit of their home state (currently $240 in Arizona). The additional $600 per week will expire on July 31, 2020, unless extended by the United States Congress.

In addition to the foregoing, Pandemic Unemployment Emergency Compensation permits all covered individuals to receive up to 39 weeks of state unemployment benefits (an increase from the prior limit of 26 weeks).

To apply for unemployment benefits or for more information on Arizona’s unemployment insurance program, click here.

About the Author: Meaghan Kramer assists clients with employment law and commercial litigation matters. Meaghan is advising clients on workplace related legal issues arising from COVID-19. Meaghan writes about employment issues, including safeguarding workplace confidences, and creating work environments that are free from discrimination and harassment. mkramer@eblawyers.com | 602.222.4995

Disclaimer: This article is not legal advice and is only for general, non-specific informational purposes. It is not intended to cover all the issues related to the topic discussed. If you have a legal matter, the specific facts that apply to you may require legal knowledge not addressed by this article. If you need legal advice, consult with a lawyer.

PAYING FOR BENEFITS PAID PURSUANT TO THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (THE “FFCRA”)

April 9, 2020

The Families First Coronavirus Response Act requires private employers with fewer than 500 employees to provide paid family leave and emergency paid sick leave to eligible employees. In order to pay for these benefits, the FFCRA allows eligible employers to take advantage of dollar-for-dollar tax credits.

Under the FFCRA, employees may receive up to 80 hours of paid sick leave, and an additional ten weeks of paid leave to care for one or more school-aged child whose school or daycare is closed for COVID-19 related reasons. Eligible employers that pay employees qualified wages under the FFCRA can claim a dollar-for-dollar quarterly payroll tax credit for the total amount of qualified emergency sick and family medical leave wages paid to their employees, including the Medicare tax imposed on those wages, and allocable qualified health plan expenses.

Eligible employers are also entitled to retain the amount paid for qualified wages under the FFCRA rather than pay those sums to the IRS. If an employer’s would-be employment tax deposit is insufficient to cover the cost of the qualified wages, allocable qualified health plan expenses, and share of Medicare tax imposed on those wages, the employer will be permitted to request an advance payment from the IRS.

Click here to read the IRS’s current Frequently Asked Questions related to these tax credits.

About the Author: Meaghan Kramer assists clients with employment law and commercial litigation matters. Meaghan is advising clients on workplace related legal issues arising from COVID-19. Meaghan writes about employment issues, including safeguarding workplace confidences, and creating work environments that are free from discrimination and harassment. mkramer@eblawyers.com | 602.222.4995

Disclaimer: This article is not legal advice and is only for general, non-specific informational purposes. It is not intended to cover all the issues related to the topic discussed. If you have a legal matter, the specific facts that apply to you may require legal knowledge not addressed by this article. If you need legal advice, consult with a lawyer.

WHAT EMPLOYERS NEED TO KNOW ABOUT THE EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT (“EFMLEA”)

April 8, 2020

Have you provided the required notice?

In addition to the Emergency Paid Sick Leave Act, employers with fewer than 500 employees are required to provide eligible employees with Emergency Family and Medical Leave (“Emergency Leave”) under the Emergency Family and Medical Leave Expansion Act, which went into effect as part of the Families First Coronavirus Response Act on April 1, 2020.   

Employees are eligible for these benefits if they have been on the payroll for at least 30 calendar days before seeking Emergency Leave. Employers who employ health care providers or emergency responders may elect to exclude such employees.

Employees are entitled to Emergency Leave if they are unable to work because they need to care for one or more school-aged children whose school or daycare is closed for COVID-19 related reasons. All eligible employees are entitled to up to 12 weeks of leave. The first ten days of Emergency Leave may be unpaid, although employees may choose to use their EPSLA leave or any other paid leave for which they are eligible during their first ten days.

Employees are entitled to two-thirds of their regular rate of pay during their Emergency Leave (up to a maximum of $200 per day). In addition, employers with 25 or more employees are required to reinstate employees who take Emergency Leave upon their return, to either the same or equivalent positions.

Employers with fewer than 25 employees will be required to make reasonable attempts to reinstate their employees in the year following their employee’s leave. These employers, however, will not be required to reinstate any employees whose positions are eliminated as a result of the COVID-19 crisis, including economic reasons.

All Emergency Leave expires on December 31, 2020.

Eligible employers are required to post the following notice immediately: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf Employers can comply with the posting requirement by emailing or direct mailing the notice to employees, or by posting on their internal or external website.   

Retaliation against employees related to Emergency Leave is strictly prohibited and employers face double damages and attorneys’ fees for violations related to the EPSLA.

About the Author: Meaghan Kramer assists clients with employment law and commercial litigation matters. Meaghan is advising clients on workplace related legal issues arising from COVID-19. Meaghan writes about employment issues, including safeguarding workplace confidences, and creating work environments that are free from discrimination and harassment. mkramer@eblawyers.com | 602.222.4995

Disclaimer: This article is not legal advice and is only for general, non-specific informational purposes. It is not intended to cover all the issues related to the topic discussed. If you have a legal matter, the specific facts that apply to you may require legal knowledge not addressed by this article. If you need legal advice, consult with a lawyer.

WHAT EMPLOYERS NEED TO KNOW ABOUT THE EMERGENCY PAID SICK LEAVE ACT (“EPSLA”)

April 8, 2020

Have you posted the required notice?

In the wake of the COVID-19 pandemic, employers with fewer than 500 employees are required to provide eligible employees with Emergency Paid Sick Leave. Employees are eligible if they meet any of the following criteria (regardless of how long they have been employed):

  1. the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. the employee has been advised by a health care provider to self-quarantine because of COVID-19;
  3. the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  4. the employee is caring for an individual subject or advised to quarantine or self-isolate;
  5. the employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or
  6. the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Full-time employees are entitled to 80 hours of paid sick time, and part-time employees are entitled to the equivalent of the average hours that they would work over a two-week period. Employees who take EPSLA leave because of their own illness or quarantine, must be paid their regular rate of pay, subject to a maximum of $511 per day and $5,110 total. Employees who take EPSLA leave to care for a family member or a school-aged child (due to illness or a school/daycare closure) are to be paid two-third of their regular rate of pay, subject to a maximum of $200 per day and $2,000 total.

Employees are permitted to use EPSLA hours before they dip into their Arizona Paid Sick Time. Any unused EPSLA hours will expire on December 31, 2020.

All employers subject to the EPSLA are required to post the following notice: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf Employers can satisfy this posting requirement by emailing or direct mailing the notice to employees, or by posting on their internal or external website. 

The Act prohibits retaliation and employers face double damages and attorneys’ fees for violations related to the EPSLA.

About the Author: Meaghan Kramer assists clients with employment law and commercial litigation matters. Meaghan is advising clients on workplace related legal issues arising from COVID-19. Meaghan writes about employment issues, including safeguarding workplace confidences, and creating work environments that are free from discrimination and harassment. mkramer@eblawyers.com | 602.222.4995

Disclaimer: This article is not legal advice and is only for general, non-specific informational purposes. It is not intended to cover all the issues related to the topic discussed. If you have a legal matter, the specific facts that apply to you may require legal knowledge not addressed by this article. If you need legal advice, consult with a lawyer.

Let Your People Vote: Employer Obligations on Election Day

As we gear up for Arizona’s 2018 primary election, employers should be aware of their legal obligation to permit employees paid time to vote, without penalty.

Plenty of Early Voting Opportunities

While the primary election is not scheduled until August 28, Arizona’s early voting laws allow early voting both in-person and by mail during the 27 days leading up to the election. Before Election Day, employers can encourage employees to vote on their own time, but have no obligation to give employees paid leave to vote during working hours. To the extent that an employer’s policies permit, however, employees can always elect use their paid time off to drop off a ballot.

Despite the ample early voting opportunities available to Arizona voters, employers are required by Arizona law to permit their employees protected and paid time off to vote on Election Day, without penalty. This law applies to employees whose shift schedules deny them less than three consecutive hours between the opening of the polls and the beginning of their shifts, or between the end of their shifts and the closing of the polls. Because Arizona law requires that the polls remain open from 6:00 a.m., to 7:00 p.m., employers are required to make accommodations for all employees who seek leave to vote, and whose shifts either start before 9:00 a.m. or end after 4:00 p.m.

Employer Responsibilities on Election Day

So, your employees want to leave work to vote on Election Day. What should you do? It’s pretty simple—let them leave to vote. The time an employee spends voting should be paid as time worked, though it’s prudent to log that time separately as “voting time” on employee timesheets. You can’t reduce their wages, or force them to dip into their earned paid time off or sick time. And you can’t penalize them in any way for choosing to vote during working hours.

Over the last four presidential election cycles, 55.0% of Arizona’s voters have been employed in hourly rather than salaried positions. A mass exodus of hourly employees on Election Day could cause staffing problems in many industries. As an employer, you are permitted to provide reasonable restrictions on when your employees can leave work to vote on Election Day. For example, you may specify which hours each employee may be absent to vote, and you can also require that your employees notify you in advance of Election Day to arrange a time that they may leave to vote. You need only provide employees with three consecutive hours in which to cast his or her ballot, either before or after the employee’s shift. While you aren’t required to advertise or give notice of this law, some employers include a provision in their employee handbook that gives employees notice of their rights and of these restrictions.

Any employer that denies its employees the right to leave to vote on Election Day can be charged with a Class 2 misdemeanor. The Arizona Employment Protection Act also gives an employee who has been fired for voting pursuant to this law the right to sue his or her former employer for retaliatory discharge.

Encouraging Civic Engagement Could be Good for Business

We live in a politically charged time. There is much confusion about employees’ rights to “free speech” at work (or lack thereof), and many employees feel passionately about exercising their right to vote. You’re only required to provide paid leave for those employees who request voting leave in advance of Election Day. Still, employers might consider encouraging employees to take time to vote on Election Day if they have not voted early.

Americans are busy people, and many voters are unaware of their early voting opportunities. According to a July 2018 report published jointly by the Arizona Citizens Clean Elections Commission and Morrison Institute for Public Policy, Arizona has one of the lowest voter turnout rates in the nation, and the number one reason Arizonans cite for not voting is that they have no time, or are too busy.

Voting leave is a benefit to which your employees are already entitled. Encouraging civic engagement can boost company morale and employee satisfaction. And we know that employee satisfaction is good for business.

Look for Upcoming Series, “Speech in the Workplace”

Election season can also give rise to toxic political discourse in the workplace. Employers should never miss an opportunity to encourage civility and to ensure that management is leading by example. For more guidance on speech issues, look for our upcoming series “Speech in the Workplace” which will cover topics ranging from political speech and religious freedoms in the workplace, to confidentiality restrictions and policing employees’ use of social media.

About the Author: Meaghan Kramer practices employment law and commercial litigation for EB. Meaghan is interested in the future of work and writes about issues affecting the workplace, including safeguarding workplace confidences, and creating work environments that are free from discrimination and harassment.

 

Disclaimer: This blog is not legal advice and is only for general, non-specific informational purposes. It is not intended to cover all the issues related to the topic discussed. If you have a legal matter, the specific facts that apply to you may require legal knowledge not addressed by this blog. If you need legal advice, consult with a lawyer.