By Anthony Kaylin, courtesy of SBAM Approved Partner ASE
Michigan is beginning its phased approach to reopening and is now in phase 4. Employers will be busy this summer as they return to work. It will be important to remain compliant with all COVID-19 legislation and health and safety guidelines. Below are some items to consider as workplaces open.
1. The FFCRA is effective until 12/31/20
For small business owners, under 500 employees, the Families First Coronavirus Response Act (FFCRA) is in effect at least until end of year. The law provides employees two new protections: The Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLA). Each have their own eligibility requirements and differ in how they work. However, the two may overlap.
Under the FFCRA, employers are required to provide paid sick time for the following reasons:
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 due to concerns related to COVID-19.
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
4. The employee is caring for an individual who is subject to an order as described in reason for use (1) or has been advised as described in reason for use (2) (as described above).
5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions.
6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Under the EPSLA, the amount of pay depends on which reason the time off is used. Specifically, covered reasons (1) through (3) above must be paid at the 100% rate, while covered reasons (4) through (6) above can be paid at the 2/3 rate. In addition, PST payments can be capped as follows: (I) $511 per day and $5,110 in the aggregate for covered reasons (1) through (3) and (II) $200 per day and $2,000 in the aggregate for covered reasons (4) through (6). However, if an employer is able to pay an employee an amount that is greater than the above caps, the employer would not receive any corresponding additional tax credit.
If the employee has COVID-19, is caring for someone who has COVID-19, or is required to stay home to take care of a child (5 above), the employee may be eligible for EFMLA. The first two weeks would be paid under EPSLA and the next two weeks under FMLA at the 2/3 of pay subject to the caps discussed above. The one exception is for the care of a child, which would be paid at 2/3 of pay for an additional 10 weeks or 12 weeks total.
2. Employers must plan return to work carefully
a. Employee refuses to return to work
When recalling an employee who is on furlough or short-term layoff, the employer needs to identify in writing to the employee the time and date of return and the mitigation measures taken to reduce risk of infection. Further, in the State of Michigan, businesses must have a pandemic response plan, therefore, identify the pandemic plan that can reviewed by the employee upon request.
An employer who has done the above, yet the employee still refuses to return, must make a decision whether to protest the nonreturn or not. The issue is that Pandemic Unemployment Assistance (PUA) is not charged back to the employer, thus making an incentive for an employer not to fight the claim. If an employer applied and received a Paycheck Protection Program Loan, the employer is required to protest the claim and report it to the UIA in order to count the employee for headcount purposes.
b. Taking temperatures
The employer is generally instructed to send home or isolate an employee who records a temperature of 100.4 degrees or higher. A number of things can impact the temperature of an employee. Therefore, it is recommended to have the employee placed in an isolation area for an hour. That hour will be paid time to the employee. After the hour, retake the temperature and if the employee falls under 100.4 degrees, let the employee return to work. If not, send the employee home. The employee can return to work after three days of no fever. This time at home should fall under the EPSLA under List item 6 above and should be paid at the appropriate rate.
Time standing in line for taking temperature and clocking in will not generally be charged to the employer. It is still considered employee time, but that could change if a court rules otherwise.
c. Workspace
The Center for Disease Control released new guidance providing a checklist for employers on what they need to do to ensure their office spaces are physically prepared for workers to return and how they should approach interactions with employees as they proceed beyond the pandemic.
The employer should establish policies for wearing personal protection equipment (PPE) such as masks, gloves, face shields, etc., and not be afraid to enforce the policies. The cost should be borne by the employer.
The employer should also establish policies for spacing, including marking off spacing in the facility, whether near a time clock or line to get into the facility, or spacing on the factory floor. For office spaces, employers should ensure proper distancing as well as walls between cubicles.
Water fountains should be turned off, and employers should provide bottled water for their employees.
Bathroom and lunch breaks need to be timed and spaced out. Cleaning schedules should be posted and adhered to for these locations.
d. Customer facing employees
Ensure there are procedures in place for customers who come to the workplace or for employees going to the customer workplace. Train employees on these procedures for any customer who refuses to comply. Employers will have to carefully navigate how to approach this problem, as legal liability can attach if something happens that negatively impacts an employee. Employees should not argue with customers or otherwise put themselves in a possibly dangerous situation.
e. Employee develops symptoms at work
In the case of this situation, employers should immediately send the employee home. If the employer has space for telehealth, it could be used to have the employee examined. Note that testing of the employee can be done as long as the employee shows symptoms of COVID-19.
It will be important to contact the business’ Workers’ Compensation Carrier to coordinate potential coverage.
Employee confidentiality is important, but the employer needs to trace where and whom the sick employee was around. Those employees should be informed that they may have been exposed, but they can stay at work. Make sure they are wearing PPE at all times in this situation.
Further, make sure the workspace where the employee was working is thoroughly cleaned and decontaminated (sterile wipes etc.).
And if the employee is found to have COVID-19, the employer must report that to local health officials as well if required on their OSHA 300 reporting.
f. OSHA/MIOSHA requirements
Liability for OSHA falls under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1) that requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” If an employee gets sick at work, or an employee brings the sickness back to the family, the employer could be liable under this section.
Moreover, the employee under general tort liability could sue the employer. Strict adherence to mitigation process and procedures is important.
Second, liability for an employer could arise from whistleblowing. Whether via social media or statements are made by employees to other employees about the safety in the plant, an employee does have certain safeguards to protect themselves from firing. Do not retaliate against employees who may complain. Instead, engage the employee and communicate the various mitigation measures being done. The employee may also have some good ideas for additional mitigation.
As a side note, the National Labor Relations Act (NLRA) and the Governor’s Executive Orders may apply as an additional protection for employees.
g. Training
Employers need to inform all employees of their pandemic response plan. This includes small details such as how to put on and wear masks and washing hands.
3. EEO Concerns
Employers need to be concerned with EEO liability. If an employee is at risk and requests an accommodation, make sure that the employer participates in an interactive discussion. Further, make sure no one jokes about employees having COVID-19. That could be the basis of a perceived disability ADA claim.
In these unusual times, these are just a tip of iceberg of issues that can arise. The key is to be prepared and have a detailed pandemic response plan in place. The world of work is changed and will continue to change as organizations find there way back into business.