CORONAVIRUS WORKFORCE ISSUES ICMA WEBINAR NEIL REICHENBERG INTERNATIONAL
CORONAVIRUS WORKFORCE ISSUES ICMA WEBINAR NEIL REICHENBERG INTERNATIONAL PUBLIC MANAGEMENT ASSOCIATION FOR HUMAN RESOURCES
IPMA-HR focuses on public sector human resource management IPMA-HR members are the human resource departments/HR directors and HR professionals that work in your organizations IPMA-HR has created a coronavirus resource page available at www. ipmahr. org/coronavirus Additional IPMA-HR information can be found at www. ipma-hr. org
CORONAVIRUS Congress has passed several bills signed by the President to provide relief from the Coronavirus Over 30 million have filed for unemployment April Gallup monthly poll – coronavirus #1 problem facing the US cited by 45% of respondents – one of the highest percentages Gallup has recorded on an issue Governments on the front lines in responding - https: //workforceinstitute. org/government-on-the-front-line/ NLC/USCM survey of 2, 400 local governments found that 88% of local officials anticipate the pandemic will lead to painful revenue reductions that will likely result in cuts to services and worker furloughs and layoffs
FAMILIES FIRST CORONAVIRUS RESPONSE ACT Law includes the Emergency Family and Medical Leave Expansion Act & the Emergency Paid Sick Leave Act Both provisions became effective on April 1, 2020 and expire on December 31, 2020 Both provisions apply to local governments of any size The law is enforced by the Labor Department’s Wage & Hour Division Labor Department has issued guidance and regulations Guidance can be accessed at: https: //www. dol. gov/agencies/whd/pandemic/ffcra-questions
EMERGENCY FAMILY AND MEDICAL LEAVE Emergency Family and Medical Leave Expansion amends the FMLA and will apply to any employee who has been employed for at least 30 calendar days and is unable to work or telework due to a need for leave to care for a child under 18 of the employee if the school or place of care is closed or the childcare provider is unavailable due to a public health emergency Of the 12 weeks of FMLA leave, the first 10 days can be unpaid leave with the subsequent 10 weeks being paid at a rate that is capped at $200/day or $10, 000 total Employers have the option of paying more than what the law mandates
EMERGENCY FAMILY AND MEDICAL LEAVE Employers can require or employees can elect after the first two weeks of emergency FMLA to take remaining expanded family and medical leave at the same time as any existing paid leave that employees have accrued This would include personal leave or vacation but not medical or sick leave If using existing leave concurrently, employers must pay the full amount to which employees are entitled under existing paid leave for the period of the leave taken If employees exhaust their preexisting paid leave and are still entitled to additional expanded family and medical leave, employers must pay at least 2/3 of pay for subsequent periods, up to $200 per workday
EMERGENCY FAMILY AND MEDICAL LEAVE Employers would need to make reasonable efforts to restore employees to the same or an equivalent position If these efforts fail, the employer needs to make reasonable efforts to contact the employee if an equivalent position becomes available during the next year Emergency responders & health care workers can be exempted from the law The total FMLA leave that can be taken is 12 weeks Employees who used FMLA leave prior to the effective date of this law, would have the total number of weeks used deducted from the maximum amount of 12 weeks
EMERGENCY PAID SICK LEAVE Emergency Paid Sick Leave Act requires that employers provide full-time employees with 80 hours of paid sick time & part-time employees with paid sick leave on a pro-rated basis if employees are unable to work or telework for the following reasons: The employee is subject to a federal/state/local quarantine or isolation order related to coronavirus The employee has been advised by a health care provider to self-quarantine due to coronavirus concerns The employee is experiencing symptoms of coronavirus & is seeking a medical diagnosis
EMERGENCY PAID SICK LEAVE Emergency Paid Sick Leave can be taken for the following reasons: The employee is caring for an individual who is subject to a quarantine or isolation order or advised to self-quarantine by a health care provider The employee is caring for a child whose school or care provider is closed or unavailable due to coronavirus precautions The employee is experiencing any other condition substantially similar to the coronavirus as specified by the Secretary of the US Department of Health & Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor
EMERGENCY PAID SICK LEAVE Paid sick leave would be available immediately no matter how long the employee worked for the employer The paid sick leave is in addition to any other leave entitlements With the agreement of the employer and employee, the employees can use preexisting leave to supplement the amount received from the paid sick leave, up to the employee’s normal earnings
EMERGENCY PAID SICK LEAVE The employees’ emergency paid sick leave is calculated based on the employees’ regular rate but is limited to $511/day and $5, 110 total Where the emergency sick time is for employees’ to be caregivers, it is based on 2/3 of the regular rate, but is limited to $200/day and $2, 000 total Emergency responders and health care workers can be exempted Records related to emergency paid sick leave and emergency family & medical leave must be retained for 4 years
INTERMITTENT LEAVE If employers allow it, employees who are teleworking due to one of the qualifying reasons, can take paid sick leave intermittently If employees are prevented from teleworking their normal schedule since they are caring for a child, employers can allow them to take expanded family medical leave intermittently The intermittent leave can be taken in any increment to which the employer and employee agree DOL encourages employers and employees to collaborate to provide flexibility and meet mutual needs
INTERMITTENT LEAVE Unless employees are teleworking, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments Unless employees are teleworking, once they begin taking paid sick leave for a qualifying reason other than to care for a child whose school or place of care is closed, they have to continue to take paid sick leave each day until they either use the full amount of paid sick leave or no longer have a qualifying reason Paid sick leave can be taken intermittently where employees are taking care of their children whose school is closed DOL example: Paid sick leave could be taken on Mondays, Wednesdays, and Fridays, and employees could work at their worksites on Tuesdays and Thursdays
INTERMITTENT LEAVE Expanded family and medical leave can be taken intermittently where employees agree even for those who cannot telework
EMERGENCY RESPONDERS In the discussion section of the Labor Department’s regulations, it states: “The authority for employers to exempt emergency responders is reflective of a balance struck…On the one hand, the FFCRA provides for paid sick leave and expanded family and medical leave so employees will not be forced to choose between their paychecks and the individual and public health measures necessary to combat COVID-19. On the other hand, providing paid sick leave or expanded family and medical leave does not come at the expense of fully staffing the necessary functions of society, including the functions of emergency responders…Therefore, the Department interprets emergency responder broadly. ”
EMERGENCY RESPONDERS Emergency responders according to the DOL regulations (29 CFR 826. 30) include: Law enforcement officers, correctional institution personnel, firefighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency
TELEWORK The Labor Department provides that the FFCRA and the regulations encourage employers and employees to implement highly flexible telework arrangements that allow employees to perform work, potentially at unconventional times, while tending to family and other responsibilities, such as teaching children whose schools are closed for COVID-19 related reasons Where allowing flexibility employers would not be required to count as hours worked all time between the first and last principal activity performed by an employee who is teleworking Employers and employees can set flexible schedules and employees must be paid for all hours actually worked
FFCRA POSTER The FFCRA requires employers to display a poster detailing employee rights to paid sick leave and expanded family and medical leave act under the law The poster is available at: https: //www. dol. gov/sites/dolgov/files/WHD/posters/FFCRA_Poster _WH 1422_Non-Federal. pdf
FFCRA QUESTIONS Questions raised by IPMA-HR members: If an organization provided emergency sick leave effective the date the law was signed but before April 1 st do they get credit towards the 80 hour maximum? Can employers designate time off for child care as expanded FMLA leave even if employees have not requested it and they are receiving official leave with pay? How do you deal with employees who are working remotely, have health conditions, and are concerned with returning to work?
FFCRA QUESTIONS Does an employee whose wife is due to give birth and he needs to self-quarantine for 14 days prior to the delivery in order to be present at the birth qualify for the emergency FMLA? How do you treat employees with pre-existing medical conditions who have notes from doctors saying they can’t work due to COVID-19? A husband wife work for a city and the husband is on administrative leave with pay since he doesn’t have work and his job doesn’t lend itself to telework and the wife is in an essential job but is not an emergency responder and wants expanded FMLA for childcare. Can the city convert the husband to emergency FMLA and require the wife to continue working?
IPMA-HR SURVEY IPMA-HR is conducting surveys on coronavirus workforce issues: 30% of respondents had a telework policy prior to the crisis Top struggles with remote work are 1) technical issues, 2) balancing work-family needs, 3) feeling socially isolated Top benefits are 1) schedule flexibility, 2) less time/resources spent on commuting, 3) work-life balance 55% say they are planning to continue telework after they reopen 72% say they will maintain an expanded telework program
PAYMENT OF FICA TAXES ON EMERGENCY FMLA & SICK LEAVE FFCRA does not require employers including government employers to pay the employer share of the FICA taxes on paid emergency FMLA and emergency sick leave Private employers get a payroll tax credit in the amount of the total paid emergency FMLA leave and emergency paid sick leave wages that they can use to offset the social security portion of FICA payroll taxes that they pay on all other employees Governments are not eligible for these tax credits HR 6643 introduced by Representative Schneider (D-IL) would allow governments to use the tax credit The bill has 108 cosponsors
NEW YORK STATE LAWSUIT The New York State Attorney General has filed a lawsuit against the Department of Labor challenging the FFCRA regulations A motion for summary judgement was filed requesting the court block the regulations and restore the FFCRA to its intended effect
NEW YORK STATE LAWSUIT The lawsuit was filed in the US District Court for the Southern District of New York and claims the new rules violate the FFCRA by: Denying paid sick leave & emergency family leave if the employer determines there is not work for the employee; Establishing an overly broad definition of health care provider resulting in the denial of paid sick leave & emergency family leave; Needing the consent of employers in order to take paid sick leave or emergency family leave intermittently; and Conditioning eligibility for paid sick leave or emergency family leave on an employee having previously provided documentation to the employer
FFCRA LAWSUIT In Stephanie Jones v. Eastern Airlines, an airline’s former Director of Revenue Management filed claims against her former employer and two executives alleging that she was illegally fired for requesting time off to care for her child under the FFCRA The FFCRA provides employees with a private right of action to seek remedies allowed under the FLSA that includes liquidated damages for willful violations and attorneys fees
POTENTIAL FUTURE EMPLOYMENT LITIGATION Employers may face employment litigation for the following: Timekeeping – Employees working from home may claim that they worked more hours for which they were not paid and file FLSA lawsuits Failure to implement the FFCRA properly – The FFCRA gives employees the right to file actions against employers Safety Actions – Employees may claim that employers failed to provide necessary protective equipment, proper hygiene, social distancing creating unsafe working conditions ADA – Employees who have conditions making them more susceptible to the coronavirus may be reluctant to return to work and could file ADA claims if they are not provided with a reasonable accommodation
CARES ACT Section 2302 of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) allows the deferral of the employer’s portion of the employment tax deposits and payments through December 31, 2020 The deferral applies to deposits and payments of the employer’s share beginning on March 27, 2020 and ending December 31, 2020 The deferred deposits of the employer’s share of social security tax must be deposited by: 50% of the deferred amount by December 31, 2021 The remaining amount of December 31, 2022
CARES ACT – UNEMPLOYMENT BENEFITS The CARES Act provides unemployment assistance for governments as follows: The federal government will reimburse governments for half of the costs they incur to pay for all unemployment benefits through December 31, 2020 (Section 2103) The federal government will provide funding to provide an additional $600 per week in addition to the weekly unemployment benefit through July 31, 2020 (Section 2104) If individuals remain unemployed after state benefits are no longer available, the federal government will fund up to an additional 13 weeks of unemployment benefits (Section 2107)
EEOC TECHNICAL ASSISTANCE The Equal Employment Opportunity Commission has issued technical assistance questions and answers titled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws The technical assistance is available at: https: //www. eeoc. gov/eeoc/newsroom/wysk_ada_rehabilitaion_act_coro navirus. cfm
EEOC TECHNICAL ASSISTANCE The technical assistance questions and answers addresses such issues as: Disability-Related Inquiries and Medical Exams Confidentiality of Medical Information Hiring and Onboarding Reasonable Accommodation Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics Furloughs/Layoffs Return to Work
EEOC TECHNICAL ASSISTANCE The most recent addition to the EEOC technical assistance was added on April 23 rd and provides: Employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus
FUTURE LEGISLATION According to Senator Schumer (D-NY): “Congressional Republicans and the Trump Administration must work with us on providing states and localities the help they need to protect the jobs of our firefighters, police officers, teachers, and other public employees and the important services they provide. As part of this agreement, we were able to secure a commitment from Secretary Mnuchin that he will support additional state and local relief in the next COVID-19 legislation, as well as a provision providing the flexibility to use all past and future relief dollars to offset lost revenues. ”
COVID-19 HEROES FUND Senate Democrats have proposed the establishment of a heroes fund that would provide: $25, 000 pandemic premium pay increase for essential frontline workers, equivalent to an additional $13/hour from the start of the public health emergency until 12/31/20 $15, 000 recruitment incentive for health and home care workers and first responders to attract and secure the workforce needed to fight the public health crisis Funds are limited to frontline and public-facing positions and employees who are teleworking would not be eligible Definition of essential frontline workers is not included
RETURN TO WORK Organizations are planning return to work strategies and some considerations: Communication strategies/planning Use phased-in approach specific to business needs Ensure social distancing is maintained – reconfigure office space as needed Use virtual meetings Limit the use of shared office equipment Regularly disinfect private and common areas Regulate the flow of customers in common areas and consider installing plexiglass at customer service counters
RETURN TO WORK Allow the use of face masks and provide them if possible Encourage good hygiene – frequent washing of hands, use of sanitizer, etc. Consider taking employee temperature Remember that emergency paid sick leave and leave under the expanded FMLA is available until December 31 st Allow part-time teleworking, alternative work schedules, staggered shifts, alternative work locations Provide accommodations for high-risk employees Consider dependent care issues while schools/day care/camps are closed EAP for employees experiencing fear, isolation, etc.
VACATION POLICIES Governments are implementing changes to their vacation policies since employees are restricted from traveling: Forgoing use or lose leave Extending vacation carryover deadline by 6 month Increasing the maximum number of hours that can be carried over
PUBLIC SERVICE RECOGNITION WEEK May 3 – 9 is Public Service Recognition Week Great time to recognize and thank public employees for all that they are doing
ADDITIONAL INFORMATION For additional information, please contact: Neil Reichenberg IPMA-HR nreichenberg@ipma-hr. org
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