FFCRA - Applicability • Public employers and private employers with fewer than 500 employees • Exemption for small businesses under 50 employees "if the leave requirements would jeopardize the viability of the business as a going concern" • Ability to exclude employees who are healthcare providers or emergency responders
FFCRA – Leave Requirements • Unable to work or telework • Two weeks of Emergency Paid Sick Leave • Regular pay if employee is: (a) quarantined (pursuant to order or advice of health care provider), or (b) experiencing COVID-19 symptoms and seeking a medical diagnosis • Two-thirds pay if needed to care for (a) an individual subject to quarantine (pursuant to order or advice of health care provider), or (b) a child under 18 whose school or care provider is closed or unavailable • Up to additional 10 weeks EFMLA Leave • Two-thirds regular rate of pay • Only if needed to care for a child under 18 whose school or care provider is closed or unavailable
FFCRA – Other Requirements • Employer Notice: Must post a notice of FFCRA requirements in a conspicuous place on your premises • Prohibitions: may not discharge, discipline, or otherwise discriminate against any employee who takes paid sick leave under the FFCRA or who files a complaint or institutes a proceeding under or related to the FFCRA
OSHA and ADA – General Requirements • OSHA "general duty clause": requires employers to furnish to each worker "employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm. " • EEO laws, including the ADA and Rehabilitation Act, continue to apply during COVID-19 pandemic, but "do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID 19. "
What Can I Do? • Ask questions? • May ask employees if they are experiencing symptoms of COVID 19, such as fever, chills, cough, shortness of breath, or sore throat. • Must maintain information in confidential medical record • Take temperatures? • Generally considered medical exam • But allowed now because CDC and state/local health authorities have acknowledged community spread of COVID-19 • Must maintain information in confidential medical record
What Can I Do? • Require sick employees to stay home? • Yes. The CDC says employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice. • Tell others about employee illness or exposure? • Must maintain confidentiality of identity • But need to tell workforce about potential contact with sick employee • EEOC says temp/staffing agencies may notify employer and disclose name so it can determine potential contact within its workplace
FLSA and Employee Pay • Exempt, salaried employees must receive full salary in any week in which they perform any work, subject to limited exceptions • Hourly, non-exempt employees only have to be paid for hours they actually work • Must still maintain accurate record of hours worked • Must still pay minimum wage and overtime • Watch for and prohibit work performed "off the clock" • Employees cannot "volunteer" to perform for free the same services they are employed to perform