With the number of COVID-19 related laws and regulations issued over the last two months, we know it can be difficult for employers to keep up with the latest legal developments. To assist, we have created the following “round up” for employers to easily review the most recent updates to the federal guidance.
The “round up” includes information on:
- Payment Protection Program loans and return-to-work issues
- The EEOC’s updated guidance on returning to work
- Updated FAQs on FFCRA paid leave programs for child-care related reasons
- The CDC’s recent guidance on health screenings
Unemployment benefits under the CARES Act
Payment Protection Program (“PPP”)
The Small Business Administration and the Treasury Department have continued to update the FAQs regarding PPP loans and its administration. Of particular interest to employers is the following new FAQ:
- Will an employer’s loan forgiveness amount be reduced if an employee refuses to return to work? The Treasury Department has answered this by saying that an employer’s loan forgiveness amount will not be reduced if the employer makes a “good faith, written offer of rehire,” and the employee’s rejection of that offer is documented by the employer. It should also be noted that in such a case, the employee may lose unemployment benefits. (See FAQ #40.)
For a full version of the FAQs: CLICK HERE
EEOC Guidance on Returning to Work
The EEOC has also issued new guidance on ADA compliance issues when employees return to work, specifically concerning individuals who may be more vulnerable to COVID-19. The following summarizes the EEOC’s position in this area:
- Who is at a higher risk for severe illness from COVID-19? The EEOC points to CDC guidance [CLICK HERE], which lists several conditions that place an individual at a higher risk of severe illness, including individuals who are 65 years or older, and individuals of all ages who have underlying medical conditions, especially if not well controlled, such as chronic lung disease, moderate to severe asthma, serious heart conditions, compromised immune system, severe obesity, diabetes, chronic kidney disease requiring dialysis, and liver disease. (See Questions G.3 and G.4.)
- What are the employer’s obligations with respect to employees who are at higher risk of serious illness from COVID-19? The ADA requires employers to provide such individuals with reasonable accommodations upon request. Employees do not need to use the term “reasonable accommodation” or reference the ADA, but they must inform the employer that they need a change to their work for a reason relating to a medical condition. The employer may ask questions or seek medical documentation to determine if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided. (See Question G.3.)
- What if the employer knows an employee has an underlying condition, but the employee does not seek an accommodation? Employers may not exclude an employee from the workplace simply because the employer is concerned that the employee’s health will be jeopardized because of a disability, unless that disability poses a “direct threat” to his or her health that cannot be eliminated or reduced by a reasonable accommodation. Having an underlying condition identified by the CDC alone does not qualify as a direct threat. Whether the standard is met may depend on analysis of various factors including the severity of the pandemic in a particular area, how controlled the employee’s underlying condition is, his or her job duties, and the likelihood that he or she will be exposed to the virus at the worksite. (See Question G.4.)
- What kind of accommodations must be provided? A reasonable accommodation is based on a case-by-case analysis for each individual employee, but the EEOC has provided some suggestions, including: (1) protective gowns, masks and gloves; (2) barriers between employees and coworkers or the public; (3) substitution of certain “marginal” functions of a job; (4) temporary work schedule modifications; and (5) relocating the area of work. (See Question G.5.)
For the full EEOC guidance: CLICK HERE
FFCRA Paid Leave Programs
The Department of Labor has issued a few additional FAQs relating to the paid leave programs under the FFCRA. Some noteworthy new FAQs to highlight include:
- If an employee has already been teleworking for some time without issue with their children at home due to COVID-19-related school closures, can they thereafter request leave under FFCRA for child-care related reasons? Yes. Just because an employee has been teleworking despite having children at home does not mean that the employee cannot now take leave to care for his or her children whose schools are closed for a COVID-19 related reason. An employer can ask the employee to provide the qualifying reason he or she is taking leave, although employers are advised to exercise caution when asking for specific information regarding such leave. (See FAQ #91.)
- Can employees take FFCRA paid leave when a school is closed for summer vacation? Generally, no. FFCRA paid leave is not available when a school is closed for summer vacation. However, an employee may still be eligible for FFCRA paid leave if their child’s care for the summer (such as a summer camp or other program in which the child is enrolled for the summer) is closed or unavailable due to COVID-19. (See FAQ #93.)
For a full version of the FAQs: CLICK HERE .
CDC Guidance on Health Screens
The CDC has updated guidance for employers relating to COVID-19 and related workplace issues. The following should be reviewed carefully by employers:
- What should employers do when an employee comes to work with symptoms of COVID-19 or is suspected of having COVID-19? Employees should be immediately separated from others and sent home. They should not be permitted to return to the workplace until they meet the following criteria, assuming they cannot be tested: (1) have at least 3 days with no fever (without the use of medication); (2) improvement in respiratory symptoms; and (3) at least 10 days have passed since symptoms first appeared.
- What should employers do when an employee has been exposed to COVID-19 but has not shown symptoms? Employers should tell the employee to self-isolate at home for at least 14 days. If an employee shows symptoms, they must also be told to self-isolate and follow the guidance above before returning to work.
- Should employers screen employees? If so, how? The CDC suggests that a health screen (such as a temperature check) is an option that employers may use. The EEOC has also stated that such temperature checks and certain other health screens are permissible under the ADA as well. The CDC’s guidance expands on how to safely administer temperature checks. In addition, the guidance recommends practicing social distancing measures, implementing barriers or partitions between employees and others, and using personal protective equipment.
For a full version of the updated guidance, CLICK HERE .
Guidance on Unemployment Benefits Under the CARES Act
The DOL’s Employment & Training Administration has also issued additional guidance concerning unemployment eligibility under the CARES Act:
- Can employees working reduced hours or part-time also get Federal Pandemic Unemployment Compensation (“FPUC”), meaning the additional $600 benefit available under the CARES Act? So long as an individual is eligible for at least $1 of unemployment benefits in a particular week, he or she will be eligible for FPUC for that week. This means that an individual receiving partial unemployment benefits, either because he or she is now working reduced hours or has been rehired on a reduced schedule, will also receive an additional $600 for that week. (See Questions 3 and 4.) The FPUC ends on July 31, 2020, and the benefit week to which the FPUC applies may end prior to that date depending on state rules.
- Is there anything an employer can do about an employee who refuses to return to work or quits work to obtain unemployment benefits? In other recent guidance from the DOL [CLICK HERE], it was clarified that an individual would not be eligible for unemployment benefits (including the additional FPUC) if an employee refuses to return to work solely because they are afraid of COVID-19. Individuals would also not be eligible for unemployment benefits if they are employed but quit in order to receive unemployment benefits. In such instances, employers can (and sometimes are obligated to) contact the State unemployment agency.
For a full version of the updated DOL’s Employment & Training Administration guidance, CLICK HERE .
If you have any questions relating to this eAlert, or any other COVID-19 issue, please contact NFC’s COVID-19 Response Team as we are closely monitoring the rapidly changing legal landscape relating to this global pandemic. Please feel free to reach out to the NFC Attorney you typically work with or call us directly.