Tag: Labor & Employment

The United States Equal Employment Opportunity commission (EEOC) updated its Technical Assistance Questions and Answers about COVID-19, the American with Disabilities Act (ADA) and other EEO laws on Thursday June 11 and again on Wednesday June 17, 2020.

The latest EEOC updates focus on a number of important subjects for employers including COVID-19 testing, responding to various requests for accommodations, offering flexible working arrangements, and steps to take to avoid discrimination claims based on age, sex and pregnancy in the context of reopening the employer’s business.

Employers May Not Require Employees to Undergo Antibody Testing

In light of CDC’s guidance that antibody test results should not be used to make decisions about returning persons to the workplace, the EEOC advised employers that an antibody test does not meet the ADA’s standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is prohibited under the ADA. Importantly, this change only applies to antibody testing and not testing for presence of the actual virus which is still allowed under certain circumstances.

The EEOC also stated that an employee entering the worksite and requesting an alternative method of screening due to a medical condition is making a request for reasonable accommodation under the ADA or Rehabilitation Act. Thus, if the requested screening alternative is easy to provide and inexpensive, the employer may choose to make it available. If the employee’s disability is not obvious or already known by the employer, the employer may ask the employee for information to establish that the condition is a disability and, if necessary, may request medical documentation of the disability and needed accommodation.

The ADA Does Not Require Employers to Consider Employee Requests for Accommodation to Avoid Exposure to Family Member with Disability

Significantly, the new EEOC guidance clearly states that while employers must make reasonable accommodations to employees with respect to the employee’s disabilities, the ADA does not require any accommodation in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19. The EEOC clarified that while the ADA does not require employers to accommodate employees based on the disability-related needs of a non-employee with whom the employee is associated, employers are free to provide flexibilities, but should be careful not to engage in disparate treatment on a protected EEO basis when providing additional flexibilities beyond what the law requires.

Employers May Not Involuntarily Exclude Older Workers and Pregnant Workers from the Workplace

The Age Discrimination in Employment Act (ADEA) prohibits an employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acts for reasons such as protecting the employee due to higher risk of severe illness from COVID-19. While the ADEA does not include a right to reasonable accommodation for older workers due to age, employers are free to provide flexibility to workers age 65 and older even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison. The EEOC noted that workers age 65 and older also may have medical conditions that bring them under the protection of the ADA, and as such may request reasonable accommodation for their disability as opposed to their age.

Similarly, the EEOC advised employers that they may not exclude an employee from the workplace involuntarily due to pregnancy. Even if motivated by benevolent concern due to the pandemic, an employer is not permitted to single out employees on the basis of pregnancy for adverse employment actions including involuntary leave, layoff, or furlough.

However, federal employment discrimination laws may trigger accommodation for employees based on pregnancy. Even though pregnancy itself is not an ADA disability, pregnancy-related medical conditions may themselves be disabilities under the ADA. Employers must consider requests for reasonable accommodation due to pregnancy-related medical conditions under the usual ADA rules. The EEOC reminded employers that Title VII requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability or work. Thus, a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work.

Employers May Invite Employees to Request Flexibility in Work Arrangements in Advance of Employees Returning to Work

Employers are permitted to make information available in advance to all employees about who to contact to request accommodation for a disability that they may need upon return to the workplace, even if no date has been announced for their return. An employer may choose to include in such a notice all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19, and explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions. If requests are received in advance, the employer may begin a discussion with the employee focused on whether the impairment is a disability and the reasons that an accommodation is needed.

An employer also may send a general notice to all employees who are designated for returning to the workplace, noting that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis. Regardless of the approach, employers should ensure that whoever receives inquiries knows how to handle them consistent with the different federal employment nondiscrimination laws that may apply.

Employers May Not Treat Employees Differently Based on Sex or other Protected Characteristics When Offering Flexible Working Arrangements

The EEOC reminded employers that provide telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic that they may not treat employees differently based on sex or other EEO-protected characteristics. The EEOC provided as an example that female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.

Employers Should be Watchful for Anti-Asian Discrimination and Harassment in the Workplace During the Pandemic, Including Through Electronic Means While Teleworking

Managers should be alert to demeaning, derogatory, or hostile remarks directed to employees who are or are perceived to be of Asian national origin, including remarks about the coronavirus or its origins. Management should understand that harassment may occur using electronic communication tools – regardless of whether employees are in the workplace, teleworking, or on leave – and also in person between employees at the worksite. An employer that learns that an employee who is teleworking is sending harassing emails to another worker should take the same actions it would take if the employee was in the workplace. Employers may choose to send a reminder to the entire workforce noting prohibition on harassment, reminding employees that harassment will result in disciplinary action, and inviting anyone who experiences or witnesses workplace harassment to report it to management.

As legal developments related to COVID-19 are evolving rapidly on the federal, state, and local level, employers are encouraged to keep aware of additional guidance and regulations that will be issued by federal and state departments in the coming days. As always, we encourage employers to consult with counsel with their specific questions and concerns related to COVID-19.

1. Additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace;
2. Erecting a barrier that provides separation between an employee with a disability and coworkers/the public;
3. Increasing the space between an employee with a disability and others;
4. Elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position);
5. Temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting);
6. Moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).

On Friday April 17, 2020 the United States Equal Employment Opportunity commission (EEOC) updated its Technical Assistance Questions and Answers about Covid-19, the American with Disabilities Act (ADA) and other EEO laws.

The EEOC update contains important clarifications for employers on issues ranging from temperature testing employees, retention and proper storage of Covid-19 related medical records, to reasonable accommodations of disabled workers who may be at greater risk from Covid-19 as well as steps employers can take to reduce the risk of pandemic related harassment due to national origin, race, or other protected characteristics.

While employers would benefit from reading the entire update, the following 10 answers given by the EEOC to employer questions are particularly helpful:

1. When screening employees entering the workplace, employers may ask employees about symptoms of Covid-19 identified by the CDC, other public health officials, and/or reputable medical sources.
2. As the ADA already requires that employers store all medical information about an employee separately from the employee’s personnel file, employers may store medical information related to Covid-19 in existing medical files for employees and need not create separately stored files solely for Covid-19.
3. An employer may maintain a log of daily temperature checks of employees provided it maintains the confidentiality of the information.
4. Employers may disclose the names of employees it learns have Covid-19 to public health officials. Similarly, a staffing agency or contractor who places an employee in an employer’s workplace may notify the employer if it learns the employee has Covid-19 so that the employer can determine if the employee had contact with anyone in the workplace.
5. Employers may not unilaterally postpone start dates or withdraw job offers to individuals over 65 years old or who are pregnant, despite the fact that the CDC has identified them as being at higher risk of Covid-19. Employers may choose to allow telework or discuss whether the individuals would like to postpone their start date.
6. For jobs that may only be performed in the workplace, there may be reasonable accommodations that employers may provide to employees who, due to a pre-existing disability, are at higher risk of Covid-19. This may include low cost accommodations to increase distance between the employee and others, temporary job restructuring, or modifying scheduled or shift assignments.
7. Employees already receiving accommodation for a disability may be entitled to additional or altered accommodations that do not impose undue hardship on employers.
8. The employer’s current circumstances arising from the pandemic is relevant in determining whether a requested accommodation would impose an undue hardship. For example, it may be more difficult to conduct a needs assessment, acquire specific items, or provide temporary assignments or remove marginal functions. Also, the sudden loss of significant revenue by the employer, and the lack of discretionary funds, may cause an otherwise reasonable accommodation request to pose an undue hardship to the employer.
9. The EEOC recommends that when an employer reopens its workplace they should remind employees that it is against federal EEO laws to harass or otherwise discriminate against co-workers based on race, national origin, color, sex, religion, age, disability or genetic information.
10. When an employer requires returning employees to wear protective gear, an employee with a disability may need a reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for those who communicate with employees using lip reading, or gowns for individuals who use wheelchairs. Similarly, an employee may request a religious accommodation under Title VII (e.g., modified equipment due to religious garb).  In these instances, employers must discuss the request and provide the modification or an alternative if feasible if it does not impose an undue hardship on the employer’s operation.

As legal developments related to COVID-19 are evolving rapidly on the federal, state, and local level, employers are encouraged to keep aware of additional guidance and regulations that will be issued by federal and state departments in the coming days.  As always, we encourage employers to consult with counsel with their specific questions and concerns related to Covid-19.

 

Following up on the Families First Coronavirus Response Act (FFCRA) enacted on March 18, the United States Department of Labor (DOL) has released additional information explaining employers’ obligations and answering certain questions that have been raised about the new law. On March 24, the DOL issued guidance to employers on complying with the FFCRA which they continued to update over the course of the week. Specifically, the DOL issued a fact sheet which may be found here.

Guidance Updates

The DOL confirmed that the FFCRA will go into effect as of April 1, 2020 (not April 2 as previously reported). The DOL confirmed that covered employers will qualify for dollar for dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA and amounts paid by the employer to maintain health insurance coverage for the employee while on leave. The DOL also indicated that it will observe a temporary period of non-enforcement for the first 30 days after April 1, provided the employer has acted reasonably and in good faith to comply with the act. The DOL detailed what constitutes “good faith” in a service bulletin that may be found here.

Q&A on Employer Obligations

The DOL also released a set of Questions and Answers to assist employers in understanding their obligations under the FFCRA. Among the matters clarified in the Q&A’s was the calculation of the 500 employee threshold for coverage (only employers with fewer than 500 employees are covered). The DOL confirmed that both full time and part time employees working in the US are counted, and that two or more commonly ownership interests will be deemed separate employers unless they meet the integrated employer test under the Family and Medical Leave Act (FMLA).

In calculating the employee’s rate of pay for paid leave purposes, commissions and tips are included. The DOL also indicated that an employee can only take 80 hours of leave for any purpose, such that the employee cannot use 80 hours of leave for self-quarantine and then later seek emergency sick leave for a different reason. An employee who is unable to work or telework because a child’s school is closed may take 2 weeks of paid emergency sick leave and 10 weeks of paid expanded FMLA leave; however, the employee may take no more than 12 weeks of FMLA leave in any 12 month period. The DOL also clarified the circumstances under which FFCRA expanded leave may be taken intermittently.

New Guidelines for Leave Requests

The DOL Q&A’s provided examples of documentation that an employer may require of the employee requesting leave. The DOL also clarified that if the employer closes its workplace or furloughs the employee before the employee requests leave, the employee will be ineligible for FFCRA leave. In addition, if the employer shuts its workplace during a leave, the leave will end. The same would be true if the employee’s position is among those being laid off; however, the employer would need to show that the employee’s layoff was unrelated to the leave. In addition, if the employer reduces the employee’s hours, the employee may not use paid sick leave or family leave to make up the hours.

Small Business Exemption Criteria

The DOL also detailed the requirements for an employer of fewer than 50 employees to take advantage of the small business exemption from the FFCRA. Specifically, a small business may claim this exemption if an authorized officer determines that one of the following three criteria are met:

• The provision of the requested leave would result in the employer’s expenses and financial obligations exceeding available revenues and cause the small business to cease operating at a minimal capacity;
• The absence of the employee requesting leave would entail a substantial risk to the financial health or operational capabilities of the employer because of the employee’s specialized skills, knowledge of the business, or responsibilities; or
• 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 requesting leave, and these labor or services are needed for the employer to operate at a minimal capacity.

Required Employee Notice and Poster

Finally, on March 26, the DOL provided additional guidance on the notice mandated to be given to employees by April 1, 2020, and the acceptable methods of physical and electronic communicating the notice. The DOL also provided a poster which employers may use to provide the notice.

Best Practices for Employers

The above summary of the latest DOL guidance on the FFCRA is not meant to be exhaustive and employers are encouraged to review the DOL guidance in its entirety. Employers also are encouraged to continuously review the DOL site as the information is being updated frequently. As the DOL guidance cannot anticipate every employer question based on their specific circumstances, employers should consult with an attorney with their specific questions or if they require more clarity on this new law.

New York employers must be aware of the New York emergency sick leave law which was enacted on March 18, in addition to the federal Families First Coronavirus Response Act (FFCRA) enacted on the same date. Unlike the FFCRA which does not become effective until April 2, 2020, the New York law took immediate effect. The New York law provides emergency sick leave and job protection to employees subject to orders of quarantine or isolation issued by an authorized, state, county, or local governmental entity.

The New York law imposes different obligations on employers based on the size of the company and annual revenue. Employers with fewer than 10 employees and annual revenue of less than $1,000,000 in the prior tax year are required to provide unpaid sick leave (i.e. job protection) during the quarantine period. For employers with more than $1,000,000 in revenue or 11-99 employees, they must provide employees with 5 days of paid sick leave and unpaid leave for the remainder of the quarantine or isolation order. For employers with 100 or more employees, they must provide employees with a minimum of 14 days of paid sick leave and unpaid leave for the remainder of the quarantine or isolation order.

Employers with fewer than 100 employees also must allow employees to be eligible for New York Paid Family Leave (NYPFL) and New York State Disability Leave at the end of their paid sick leave. The new law expands NYPFL benefits to cover: (a) leave taken when the employee is subject to a mandatory or precautionary quarantine or isolation order; or (b) leave taken to provide care for a minor dependent child of the employee who is subject to a mandatory or precautionary quarantine or isolation order. The law expands “disability” to include the inability to perform the employee’s job duties or any other duties offered by the employer due to a mandatory or precautionary order of quarantine or isolation due to COVID-19. Employees who have exhausted paid sick leave may file for disability benefits without any waiting period.

The New York law contains a limited exception. Employees will not be eligible for benefits if they are ordered to be quarantined after returning from a foreign country as to which the Center for Disease Control and Prevention has issued a level 2 or 3 of warning and the employee was aware of the warning before commencing the trip.

The New York law does contain a provision for interacting with federal law providing COVID-19 related benefits, providing that the New York benefits would only be available to the extent they exceed the federal benefit and will not be cumulative with such federal benefit. This should allow an employee to claim benefits pursuant to the provisions of the New York law equal to the difference between the benefits provided by the state law and those provided by any federal law or regulation. It appears that the New York law will have the greatest impact on New York employers with more than 500 employees who are exempt from the FFCRA obligations.

Significantly, the New York law also allows employees whose workplaces closed down for COVID-19 related reasons or pursuant to a mandatory order of a government entity to immediately file for unemployment without any waiting period. Finally, the New York law prohibits discrimination or retaliation against any employee taking leave under the New York law.

As legal developments related to COVID-19 are evolving rapidly on the federal, state, and local level, employers encouraged to keep aware of additional guidance and regulations that will be issued by federal and state departments in the coming days. As always, we encourage employers to consult with counsel with their specific questions and concerns on these new laws.

As employers grapple with the effects of Covid-19 and federal, state, and local government mitigation efforts, many have had to make difficult decisions involving the shutdown of physical locations, employees unavailable due to closed schools and childcare, and employees suffering from the illness, caring for a loved one, or under a precautionary quarantine.

Among the most significant legal developments affecting employers is the federal Families First Coronavirus Response Act (H.R. 6201) (“FFCRA”) signed into law on March 18, 2020 and set to become effective on April 2, 2020.  The two sections of the FFCRA that will have the most direct impact on employers are Division C Emergency Family and Medical Leave Expansion Act and Division E Emergency Paid Sick Leave Act.

Emergency Family and Medical Leave Expansion Act

Under this emergency act, the definition of eligible employee is expanded to include any employee who has been employed for at least thirty calendar days.  Also, covered employers includes any employer with fewer than 500 employees.  While the FFCRA gives the Department of Labor authority to issue regulations to exclude certain healthcare providers, emergency responders, and employers with fewer than 50 employees if compliance will threaten their ability to continue as an ongoing concern, as of now, there is no statutory minimum number of employees for an eligible employer.

In order for an eligible employee to qualify for the expanded leave, the leave must be related to a public health emergency.  Specifically, the leave would be available to an employee unable to work or telework due to a need to care for a son or daughter under 18 years of age, if the school or daycare is closed, or a childcare provider is unavailable due to a public health emergency.  It should be noted that childcare provider is defined as a provider who receives compensation on a regular basis.

Significantly, the leave provided is paid, although the first 10 days of such leave may be unpaid.  An employee may elect to use available paid time off during this period; however, an employer may not require it. Thereafter, the paid leave must pay a minimum of two thirds of regular rate of pay for the hours the employee normally be scheduled to work up to a maximum of $200 per day and $10,000 in the aggregate.

The job protection provisions of the FMLA apply to leave covered by the FFCRA family leave expansion; however, an employer that employs fewer than 25 employees may be exempt under certain conditions; i.e., if the position no longer exists due to the public health emergency, the employer makes reasonable efforts to restore the employee to an equivalent position, and that the employer contacts the employee within one year of the end of the leave to let them know of an open equivalent position.  Finally, the law excludes employers from civil liability in an employee initiated suit if the employer did not employ 50 or more workers for each working day during 20 or more calendar workweeks in the preceding or current calendar year.

Emergency Paid Sick Leave Act

The emergency paid sick leave provisions of the FFCRA also apply to private employers with fewer than 500 employees.  Employees eligible to receive paid sick time are those unable to work or telework because the employee is:

1. subject to a federal, state, or local quarantine or isolation order related to Covid-19;
2. advised by their health care provider to self-quarantine due to concerns related to Covid-19;
3. experiencing symptoms of Covid-19;
4. caring for an individual subject to an order or advice under subparagraphs 1 and 2;
5. caring for a son or daughter under 18 years of age, if their school or daycare is closed, or a childcare provider is unavailable due to Covid-19 precautions; or
6. experiencing other similar conditions specified by the Secretary of Health and Human Services.

These employees are to be provided 80 hours of paid sick time if full-time.  Part-time employees are to be provided paid sick time for the average number of hours the employee works over a two week period.  Paid sick leave is available to employees regardless of how long they have been employed and employers may not require the requesting employee to search for or find a replacement.  The employer paid sick leave obligations are for their full hourly rate, but are capped at a per employee amount of $511 per day and $5,110 in the aggregate for leave based on 1 through 3 above.  For leaves based on 4 through 6 above, the employer needs to pay two-thirds of the hourly rate, up to a cap of $200 per day and $2,000 in the aggregate.

The law prohibits retaliation based on an employee’s request for such leave and applies the penalties (double damages and attorney’s fees) available under the Fair Labor Standards Act to such violations.  As with the expanded FMLA, the Department of Labor is allowed to enact regulations exempting certain employers, including employers with fewer than 50 employees whose viability may be jeopardized.

The Department of Labor should be issuing guidance in the coming days.  We will keep our clients updated on significant changes as the situation evolves and remain available to respond to specific employer questions.  We encourage all readers to consult with counsel if they have specific questions or concerns.