By Maureen Louise Pomeroy, Esq – Pomeroy Law P.C.
Jill Santopietro Panall, SPHR – 21Oak HR Consulting
(**Updated Sick Leave Section and Added Non-Essential Closures Section -3/24/20)
We wanted to provide our clients and colleagues some information regarding certain law changes and informational resources for businesses during this challenging time period. Certain laws will be coming into effect on April 1, 2020, and other laws must still be complied with regard to your employees. There may also be future changes in the laws in the days ahead. We will keep you posted on this ever-changing situation.
EXPANSION OF FMLA LAW
On March 18, 2020, the President signed a law that will be going into effect on April 1, 2020 and will require certain employers to provide leave and emergency paid sick leave by expanding the application of the Family Medical Leave Act (FMLA). These changes and expansion of FMLA will apply to private sector employers with less than 500 employees and certain public sector employers. However, employers with fewer than 50 employees may apply for an exemption from certain requirements if they can establish that compliance with the Act would jeopardize the viability of their business.
Emergency Family and Medical Leave Expansion Act
The Emergency Family Medical Leave Expansion Act has amended and expanded FMLA on a temporary basis. Employers will be required to provide up to 12 weeks of protected leave to an employee for a qualifying need related to a public health emergency for those employed by the employer for 30 or more calendar days. The law expands the applicability of FMLA to employers that were not previously subject to this law.
This protected leave is limited only to employees who are unable to work from home remotely and must be absent in order to care for a child when the child’s place of education has been closed due to a public health emergency As of now, this is the only qualifying need for emergency FMLA leave, and a significant change in the qualifying events under FMLA.
The first 10 days of the employee’s leave for childcare may be unpaid under FMLA, but an employee may opt to use their accrued vacation and sick leave during this time. After the first 10 days, the remaining 10 weeks of covered leave for childcare under this law will be paid by the employer at 2/3rd of the employee’s regular rate of pay for the number of hours the employee would normally have been scheduled to work. This payment will be capped at $200 per day ($1,000 per week and a total of $10,000 in the aggregate for each employee). The capped amount would likely apply to those employees making more than $78,000 per year.
For example, an employee who is making $20 per hour and regularly works 40 hours per week would normally make $800 per week. That employee, if out on Emergency Family Medical Leave, will be paid $533.33 for each week they are out on leave (2/3 x $800).
Employers may exclude health care providers and emergency responders from this leave. All leave under this Act will be job protected, which means that an employer must restore employees to their prior position or an equivalent at the expiration of the employee’s leave.
This Act allows subsequent regulations drafted by the U.S. Department of Labor to exempt smaller employers (under 50 employees) if the application of the law would jeopardize the viability of the business as an ongoing concern. We will keep you posted as to when the U.S. Department of Labor issues these regulations.
This law will remain in effect until December 31, 2020.
Emergency Paid Sick Leave Act
The Emergency Paid Sick Leave Act requires that private employers with less than 500 employees and covered public employers to provide up to 80 hours of paid sick time for certain qualifying coronavirus-related reasons. Specifically, employees will each be entitled to up to 80 hours of paid leave. The number of hours will be based on the average number of hours they work in a regular two week-period. This emergency paid sick leave will be available to all employees regardless of how long they have been working for the employer, but it is only available for those employees who are unable to work from home.
Employees may take this paid leave if they cannot work, or cannot work from home, due to the following reasons:
- 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 COVID-19 concerns;
- the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
- the employee is caring for an individual subject to a quarantine order as described above in paragraph (1), or advised by a health provider to self-quarantine as described above in paragraph (2);
- the employee is caring for a son or daughter whose school or place of care is closed, or a childcare provider is unavailable, due to COVID-19 precautions; or
- the employee is experiencing any other substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Employees taking leave for any of these reasons will be entitled to up to 80 hours of paid sick time for up to two weeks (or for workers who work less than full time the hours they usually work during a two-week period).
There are two monetary caps applicable to the employer’s responsibility to pay for this emergency paid sick leave. For the first cap, the amount of an employer’s payment will be capped at $511 per day for the 10 days of leave ($5,110 in aggregate for each employee) when the leave is taken for (numbers corresponding to the earlier list): (1) a federal, state or local quarantine order related to COVID-19; (2) an employee has been advised by a health care provider to self-quarantine because of COVID; and (3) an employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
Under the second cap, the employer’s payment responsibility will be capped at $200 per day ($2,000 in the aggregate per employee for the 10 days of leave) when the leave is taken for (numbers corresponding to the earlier list): (4) to care for an individual or advised to quarantine or self-isolate; (5) to care 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 other similar conditions as specified by Secretary of Health and Human Services.
Similar to the emergency leave, an employer may exclude employees who are health care providers or emergency responders. The Secretary of the Department of Labor also has the authority to issue regulations regarding: (a) the exclusion of health care and emergency responders from the definition of employee; (b) exempting small business with fewer than 50 employees if it will jeopardize the viability of the business; and (c) to ensure consistency between the pay family and paid sick standards and tax credits.
To help employers pay for this leave, employers will also have refundable tax credits if they offer emergency leave FMLA or paid sick leave, including self-employed individuals, and is subject to some caps and limitations. These credits are only available to employers required to offer these benefits under the Act, and not generally extended to employers that are not subject to these new legal mandates. The credits will be offered against payroll taxes and it will not be considered wages for employment tax purposes.
Any leave provided to employees now will not be retroactively counted toward leave granted under the Act and going into effect April 1, 2020. Any paid time currently be used would not count toward the expanded FMLA leave or toward the 80 hours of emergency sick leave, or eligible for the tax credit.
OSHA and Workplace Practices
Employers should be following OSHA guidelines with regard to employees that may have a risk of exposure to COVID-19. OSHA regulations provide for levels of risk and the types of actions an employer must take with regard to the level of risk. All employers are obligated to stay up to date with ongoing mandates for a safe work environment. In this case, employers should mandate require regular hygiene practices (handwashing and cleaning of surfaces) as recommended by OSHA or any other organization (such as the CDC).
All sick employees who show flu-like or COVID-19 like symptoms should be instructed to stay home and get tested. An employer may ask an employee to stay home or leave work if they show flu-like or COVID-19 symptoms. They can also instruct them to get tested for COVID-19.
Employers should err on the side of caution if an employee is suspected to have or been exposed to COVID-19. Employers should maintain as much confidentiality as possible while dealing with any employee who discloses exposure or for communication with employees who may have had some exposure or contact with another employee who had exposure or tests positive for COVID-19. For example, employers should communicate with employees in the event of a known exposure to someone with COVID-19 without identifying the employee exposed to COVID-19.
Employers should review CDC Interim Guidance for Business and Employers for appropriate cleaning and hygiene methods for the workplace recommended to reduce transmission of COVID-19. These guidelines are located at this website: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html. State and local officials may also have additional recommendations.
Work place exposures that are confirmed may be a reporting event under OSHA, and if so, employers must report and record such an event as required under OSHA.
Employers should designate a central employee/manager to maintain the information for the workplace in a consistent manner that can be communicated to other employees on an as-needed basis. Anyone who wants to return to work after a COVID-19 related absence should obtain a return to work certification from a medical provider.
COVID-19 ISSUES UNDER MASSACHUSETTS LAWS AND OTHER RESOURCES FOR MASSACHUSETTS EMPLOYERS
Massachusetts Earned Sick Leave
Massachusetts employers with 11 or more employee must provide up to 40 hours of paid sick leave for the reasons articulated in the Massachusetts Earned Sick Leave law and paid at the regular rate of pay. Employers with under 11 employees must provide unpaid sick leave. There is still a question as to whether the state paid sick leave will run concurrently with the Emergency Sick Leave Act and FMLA emergency leave. After April 1, 2020, there may be differences in pay under the Earned Sick Time law and the federal law when both laws apply to the leave granted, and employers must pay employees in accordance with the most generous application of the two laws. Further information on this state law may be found from the mass.gov website at - https://www.mass.gov/info-details/earned-sick-time or seek the advice of an employment attorney regarding the employer’s responsibilities under these laws.
Example # 1: If a company of 12 employees offers an employee 40 hours of paid sick time under Massachusetts law before April 1, 2020, then that company will have to offer up of 80 hours of paid sick time under the federal law requirements. (This example is subject to any exemption available for that company through the U.S Department of Labor.)
Massachusetts Unemployment and WorkShare
Massachusetts offers a program through the Division of Unemployment Assistance (“DUA”) called WorkShare. Employers may work with unemployment as an alternate to cutting a work force and allowing affected employees to receive part of their employment insurance benefits while working reduced hours for the employer. While it still charges an employer’s unemployment insurance benefits in the same manner as unemployment, it is at a reduced rate. The DUA’s website indicates that one employee who is on 100% of unemployment benefits can equate to 5 employees receiving 20% of WorkShare benefits. Employers are required to maintain the same fringe benefits (health insurance and defined retirement benefits) for participating employees. An employee can decline participation in this program, which means that the employee may opt for straight unemployment rather than participation in the WorkShare program. Employers may obtain further information from this program from the DUA or its website: https://www.mass.gov/service-details/workshare-information-for-employers.
Massachusetts Wage and Hour Responsibilities
Massachusetts Employers must continue to follow wage and hour laws with regard to the payment of wages, including minimum wage, proper overtime and the timing of regular wage payments. The Massachusetts Attorney General’s Fair Labor Division has provided guidance regarding some of the wage related questions they are receiving during this public health emergency from employees and employers. This guidance can be found on its website at https://www.mass.gov/doc/covid-19-fld-faqs.
Workers’ Compensation Claims
For workers’ compensation claims in general, employees must establish that they suffered a work-related personal injury, suffered a disability, and the employer’s liability for a claim. A personal injury may include infectious diseases if it is in the nature of the employee’s employment that there is such a hazard of contracting such diseases. For example, if an employee in a factory contracts COVID-19 from another coworker on the factory floor, this may not meet the definition of a personal injury under the workers’ compensation law. However, if it is a health care worker or first responder who contracts COVID-19 – this may be a covered workers’ compensation claim. Employees traveling for employers and exposed in a location with a known issues of COVID-19 may also involve a covered claim if the travel and presence in the infected area is determined to be inherent in the employee’s employment. Since every case is based on specific facts, you should contact your workers’ compensation insurer in the event if you have questions regarding any potential workers’ compensation claims during this public health issue.
Massachusetts Non Essential Services to Close for Two Weeks Today (Reopen April 7th Under Current Order)
As you may know, Governor Charles Baker ordered businesses and organizations that do not provide “essential services” to close their workplaces to workers and the public from at noon on March 24, 2020 until noon on Tuesday April 7, 2020. These businesses are encouraged to continue operations remotely, online, or through takeout and delivery (depending on your business). Certain businesses are considered providers of “Essential Services” in the Commonwealth and the list of such providers (as of March 23, 2020) is available at the following link. https://www.mass.gov/doc/covid-19-essential-services/download Those providing essential services will continue to operate “brick and mortar facilities” during this two week time period. Such essential service providers should still follow state and federal guidelines for distancing protocols and other efforts with regard to hygiene and sanitation protocols.
Employers responsibilities may continue to change, and we will keep you updated on those changes and provide additional resources as they become available. If you have any questions, please contact Maureen Louise Pomeroy at 978-358-7550 or Jill Santopietro Panall at 860-805-6461.