This blog contains quick summaries of the information contained in those updates with links for quick access to the resources. Employers are also reminded of the importance in fighting unemployment claims that are unwarranted and this blog provides the resources available from SCDEW to employers for doing so easily.
Centers for Disease Control (CDC) – May 3 and May 6, 2020
CDC advises all employers should implement and update as necessary a plan that:
Is specific to your workplace,
Identifies all areas and job tasks with potential exposures to COVID-19, and
Includes control measures to eliminate or reduce such exposures.
Additional CDC Guidance details processes by topic in the form of FAQs
Suspected or Confirmed Cases of COVID-19 in the Workplace
Reducing the Spread of COVID-19 in Workplaces
Healthy Business Operations
Cleaning and Disinfecting
Special Protections for Employees from Customers/Visitors
Department of Labor (DOL) – May 7, 2020
*A reminder that the Wage and Hour Division (WHD) began FFCRA enforcement April 18 (in March 24 Guidance) and April 20 per DOL announcement
DOL issued additional FAQs on these specific FFCRA topics:
Temporary Staffing Agency/Joint Employer – Which employer might be responsible to the temporary staffing employee under FFCRA based upon the joint employer analysis.
Teleworking Employee – Employees who are already teleworking are still eligible for both FFCRA leaves assuming they qualify under the requirements. It is permissible to ask for updated information justifying the leave or what has changed if employers do so cautiously.
Employer must determine if employee would be able to telework but for being required to comply with the order.
Employee must provide a signed statement containing employee’s name, date for leave requested, the COVID-19 qualifying reason for leave and a statement that employee is unable to telework or work because of the COVID-19 reason.
Employees who telework are permitted to use intermittent leave, which may be taken liberally (subject to agreement with employer).
Employers and employees should work together to implement a flexible schedule that works with both.
FFCRA EPSL #2 for symptoms of COVID-19
The DOL reminds employers that an employee needing to take leave for treatment of COVID-19 symptoms must provide the doctor’s name and date of treatment.
Final Rule – paid sick leave limited to time employee cannot work due to illness or taking time to obtain medical diagnosis.
Employee may not take paid sick leave without seeking a medical diagnosis.
The DOL reminds employers that minimal documentation required is intentional to slow the spread.
Summer childcare – The DOL addressed situations where employees seek FFCRA leave for children in the summer when school is out. The DOL states FFCRA leave is only permissible if the leave would otherwise meet FFCRA requirements.
For leave to care for child due to closure of schools or day care, the employee must provide a statement that includes the name of child being cared for, name of school or child care provider and that it is closed due to COVID-19, and a statement that no other suitable person is available to care for the child during the period of requested leave.
EEOC – May 7, 2020
Reminded employers that enforcing EEO laws do not interfere with or prevent employers from following CDC or DHEC guidelines.
Identifies permissible employee inquiries do not violate the Americans with Disabilities Act (ADA)
Must be job-related and consistent with business necessity
Must be applicable to all employees
Test must be reliable, safe and accurate
Limited to COVID-19 conditions
Employers may not inquire about underlying conditions
Employers are permitted to request doctor's notes (but be flexible with workers in format and ability to provide)
Reminded employers to adhere to ADA confidentiality of medical screenings as well as all other medical information
Notes employees entitled to exemptions from vaccinations on religious or other recognised grounds
Employers should notify SCDEW if any worker refuses to work because they are not eligible for unemployment insurance. An Employer should submit the Offer of Work form (UCB-261) to SCDEW if an employee is refusing to return to available work. These additional resources will assist employers in ensuring their experience ratings are not impacted by employee attempts to collect unemployment insurance when it is not available to them.
OSHA issued Updated Enforcement Plan and Revised Guidance on Recording COVID-19 Cases on May 19, 2020
The Updated Plan provides guidance to area offices for handling COVID-19 complaints, referrals and severe illness reports. For communities experiencing either a sustained elevated transmission or a resurgence, OSHA will increase its inspections and directs area offices to prioritize on-site inspections to high-risk workplaces (hospitals or healthcare providers treating COVID-19 patients) and workplaces with high numbers of complaints or known COVID-19 cases unless on-site inspection is not possible. In that case, a rapid response investigation will be initiated. For those areas where the spread of COVID-19 has significantly decreased, OSHA will return to its initial inspection policy issued at the outset of the COVID-19 crisis in the OSHA Field Operation Manual (FOM), CPL 02-00-164, Chapter 2, though it will continue to prioritize COVID-19 inspections, usually through informal phone/fax and rapid response investigations. The remainder of the Updated Plan mirrors its April 13 guidance which details what an OSHA inspector will evaluate including the step-by-step process it detailed in its OSHA COVID-19 guidance.
OSHA is revising its previous enforcement policy for recording cases of coronavirus. Under OSHA's recordkeeping requirements, COVID-19 is a recordable illness, and thus employers are responsible for recording cases of COVID-19, if:
The case is a confirmed case of COVID-19, as defined by the (CDC);
The case is work-related as defined by 29 CFR § 1904.5; and
The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.
However, recording the COVID-19 diagnosis on form 300 and reporting it as required by OSHA does not mean the Employer will be subject to a violation.
OSHA understands most employers will not know whether an exposure was caused in the workplace or not. Additionally, employers showing a good faith effort to protect its workplace (through OSHA COVID-19 Guidance) will be entitled to discretion.
IRS Notice 2020-29
IRS issued guidance under Section 125 Cafeteria Plans and related to High Deductible Health Plans providing increased flexibility with respect to mid-year elections under Section 125 plans as it relates to employer sponsored healthcare coverage, flexible spending accounts, and dependent care assistance programs. Employees may revoke or make existing plan elections, enroll in different health plan options sponsored by the same employer, or change from self to family coverage. Employers may also increase flexibility in FSAs and dependent care assistance programs. Unused amounts in those two accounts may also be used for medical spending.
DOL revised fluctuating workweek regulations in a final rule published May 20, 2020.
The final rule permits employers to provide additional pay, such as bonuses, commissions or premiums, to employees when using the fluctuating workweek method of pay which permits employers to offer more flexibility in scheduling to comply with COVID-19 safety measures. However, employers should consider how that might impact regular rate of pay depending on the payment. The DOL states that the fixed payments should be evaluated to determine if they should be included in the regular rate of pay for purposes of calculating overtime.
As your business navigates returning to work and continuing operations, review the resources outlined here and stay tuned to HSB’s blog as we keep you up-to-date on the latest guidance.
If you have questions about this topic or other employment law matters, please contact Chris or the HSB Employment Law practice team.