Dear Clients and Friends:
We hope that you are doing well in this incredible and sometimes challenging time.
Now that the dust is settling a bit around the Families First Coronavirus Relief Act ("the Act") and its regulations, we are shifting to share with you on a weekly basis how the Act is playing out for our clients in real time, and also to share some key developments. We are calling it Friday Five, so named because we are sharing the Top Five Things You Need to Know Today to protect your work community and help it thrive. As always, please reach out with any questions, we are here for you.
(1) Are You Providing Employees With Notice of Their Entitlements When You Grant Them EFML or EPSL?
As you know, the Act includes Emergency Family and Medical Leave ("EFML") entitlements, which expand eligibility for time off and compensation, under very specific circumstances, through December 31, 2020. If you would like a refresher on the Act and the regulations, here is a link to our prior Newsletters for backdrop.
Where the Act does not specifically modify the Family and Medical Leave Act ("FMLA"), obligations of FMLA will apply to EFML. Under FMLA, employers are required to notify am employee within five (5) days of the employee's request for FMLA leave, or an employer's awareness that the employee may need FMLA leave, of his/her potential entitlement to FMLA, and to provide the employee with notice of FMLA rights and obligations. The employee is then required to provide appropriate certification of the need for leave. Please be reminded, the usual requirement that an employee provide a physician's certification or note in support of a leave for an employee's own serious health condition or that of a family member is not required for EFML or EPSL, meaning an employer may not ask for that level of supporting documentation; you only may request the supporting information outlined in the Act.
After certification of the leave is received, the employer is required under FMLA to notify the employee if a leave has been granted under FMLA, and outline certain implications of the leave.
This means: if an employee is granted EFML, you must provide the employee with a letter that grants the leave and outlines entitlements. While this is not expressly required by the Act as it relates to EPSL (other than that you are required to provide notice of their health insurance entitlements), it is a very good idea, not only because it will help create shared expectations, but also because the request for EPSL or EFML may trigger an employer's obligation to provide FMLA notice. In other words, upon granting the EPSL (or EFML), in certain cases, you may be required to provide an employee notice of their potential entitlement to FMLA (or the California Family Rights Act ("CFRA")). Which leads us to our second thought for this week:
(2) Are You Considering Employee Eligibility for Leave Beyond EFML or EPSL When You Grant EFML or EPSL?
Remember, just because EFML or EPSL provide limited leave entitlements, an employee might be eligible for leave beyond that. For example, in California an employee might be eligible for school emergency leave beyond EFML. In another example, an employee taking leave for her own COVID-19 diagnosis might be eligible for leave under FMLA or CFRA for a serious health condition and/or for an accommodation under the Americans with Disabilities Act ("ADA") for a certified disability, beyond the two weeks. That means you may want to provide the employee with certification forms for potential additional leave when you grant their EFML or EPSL. And remember, an employee who is taking EFML is not taking CFRA, so that bucket remains available after EFML is exhausted. We can walk you through the potential leaves, let us know if you would like guidance.
(3) Do You Have Employees in Los Angeles?
Effective April 7, 2020, the City of Los Angeles requires employers that have either 500 or more employees in the City or 2,000 or more employees nationally to provide Supplemental Paid Sick Leave of up to two weeks (80 hours) for reasons related to COVID-19. In a nutshell
Supplemental Paid Sick Leave is available if employees are unable to work or telework for any of the following reasons:
- The employee has COVID-19 or a public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
- The employee takes time off because the employee is at least 65 years old or has a health condition, such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
- The employee needs to care for a family member who is not sick, but who public health officials or healthcare providers have required or recommended isolation or self-quarantine; or
- The employee needs to provide care for a family member whose senior care provider or whose school or child care provider caring for a minor child has temporarily closed in response to COVID-19. To receive supplemental paid sick leave, the employee must be unable to secure a reasonable alternative caregiver.
Certain employees and certain employers are exempted, and a Company with an equally or more generous paid time off policy may be excepted as well. We are happy to provide more information, and here is a link to the Public Order itself.
(4) OSHA has Modified its Reporting Requirements
OSHA has updated its guidance to relieve many employers of the duty to record work-related confirmed cases of COVID-19. OSHA initially issued guidance that employers are only responsible for recording confirmed cases of COVID-19, that are work-related (as defined by applicable law), and that involve one or more of the general recording criteria set forth in applicable law. Employers were expected according to this guidance to assess an employee's work duties and environment to determine whether it was more likely than not that the employee was exposed to COVID-19 while on the job.
OSHA has updated its updated guidance, recognizing that it will be difficult for employers to determine whether workers who contracted COVID-19 did so due to exposures at work. As a result, work-relatedness determinations are modified. These modifications do not apply to employers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions.
All other employers now must record COVID-19 cases that otherwise meet the reporting requirements if (1) there is "objective evidence" that a COVID-19 case may be work-related (e.g., a number of cases developing among workers who work closely together without an alternative explanation); and (2) the evidence was "reasonably available" to the employer (e.g., information given to the employer by employees; information learned in the ordinary course of managing its business and employees). An employer still is required to make a work-relatedness determination. We understand that FAQs are on the horizon.
(5) Remember the WARN and Cal-WARN Acts!
The federal Worker Adjustment and Retraining Notification Act ("WARN") requires "covered employers" to provide 60 days' advanced notice before terminating or laying off employees in connection with a plant closing or mass layoff. Where WARN applies, there are three exceptions to the 60 days' notice requirement, and two of these (for unforeseeable business circumstances and for faltering businesses) may apply. Don't assume the exceptions will apply to businesses affected by COVID-19! Even if they apply, these exceptions won't relieve you entirely of your notice or other WARN obligations.
In California, businesses with more than 75 employees must give workers 60 days' notice before a mass layoff, relocation or termination. Governor Newsom suspended the normal notice requirements mandated in California's WARN Act for mass layoffs that were not reasonably foreseeable as of the time that notice would have been required. But this doesn't eliminate all Cal-WARN notice obligations, which remain in place.
If you are laying off a group of employees, be sure to consider whether WARN or Cal-WARN apply, and how.
We Are Here For You
We hope this information is helpful as you navigate the recent developments. Please stay tuned, we will continue keeping you updated. Please stay in touch. You are in our thoughts constantly. And please, reach out if you have questions or just want to talk! As always, we are sending you wishes of health, gratitude and well-being.
As always, we are sending you wishes of health, gratitude and well-being.