News & Thought Leadership from Sulloway & Hollis

April 3, 2020

COVID-19: Frequently Asked Questions and Answers for Private Employers

Frequently Asked Questions and Answers for Private Employers

Sulloway & Hollis’ Labor and Employment Practice Group is closely monitoring the evolving legal requirements for employers on both a state and federal level. While the situation is fluid, we are providing timely information for New England employers, particularly those in New Hampshire, Massachusetts, and Rhode Island. Please note that the orders and approaches adopted by each state are changing rapidly, and often without much notice.

We are sharing a list of commonly asked questions that our Group has addressed to help you navigate this difficult time with your employees, but please contact us for specific guidance, as each situation in each state is unique.

General Employment Questions:

Do my employees need to use their paid time off before becoming eligible for unemployment benefits?

In most cases for employees who are laid off, the answers will be yes because employees will not be able to receive benefits until there are no wages due to them. This comes from the way that New Hampshire defines “unemployment” and “wages.” Wages includes all forms of remuneration, with exceptions for retirement and third-party sick leave benefits.

If I terminate or layoff an employee, what do I owe them and when do I have to pay it?

Upon termination, the employer must pay “all wages owed within 72 hours either by physically giving payment to the employee or by mail.” What is owed will depend on your vacation and benefits policy, but generally it will include any accrued paid time off, if that is what your company provides.

I don’t want to fire my employees, but I have no work for them to do and I cannot pay them. Are they still eligible for unemployment benefits?

This scenario is considered a furlough. In most cases, they may be eligible because total unemployment is defined as a week when no wages are paid and no services are performed. If that is the case, the employee should look to the state’s unemployment department to file an initial claim for unemployment.

Some employers prefer furloughs over layoffs because it allows them to extend benefits to these employers while they are out, but not every employer will choose that route—especially if doing so would make the company unviable. Employees who are laid off may be eligible for continued health benefits through COBRA.

Questions Specific to the COVID-19 Pandemic:

How do I know whether my business is “essential” and can remain open?

Most brick-and-mortar operations should close, unless it provides life sustaining goods or services. In New England, this means that most of the downtown shops we love are going to close through May 4, 2020 in New Hampshire, April 7, 2020 in Massachusetts, and April 13, 2020 in Rhode Island. Also included are gyms and other physical activity establishments, golf courses, barber shops, hair and nail salons, tattoo parlors, and many other small businesses. In Massachusetts, you can request essential business designation if you believe that your business should be considered one.

New Hampshire essential business list

Massachusetts essential business list

Rhode Island described the types of businesses it deems critical and may remain open in Governor Raimondo’s Emergency Order 20-14.

I have work for my employee to perform, but he cannot come into the workplace because he is staying at home with a child whose daycare closed. What eligibility does that employee have for any benefits?

Many states have taken action to expand unemployment insurance benefit eligibility to include those impacted by COVID-19—whether it is due to school closures or the illness itself. Congress, however, recently passed the CARES Act, which in part echoed those extensions and provides an increase in weekly benefits.

Specifically, the CARES Act defines “covered individual” as anyone who self-certifies is able and available to work but is unemployed or partially unemployed because:

  • The employee has been diagnosed with COVID-19 or is experiencing symptoms and seeking care;
  • A member of the household has been diagnosed with COVID-19;
  • The employee is providing care for a family member or household member who has been diagnosed with COVID-19;
  • The employee is the primary caregiver for a child or other person in the household who is unable to attend school or another facility as a direct result of COVID-19;
  • The employee is unable to reach the place of employment because of a quarantine imposed as a direct result of COVID-19;
  • The employee is unable to work because a health care provider has advised the individual to self-quarantine due to COVID-19 concerns;
  • The employee was scheduled to commence employment and does not have a job or is unable to reach the job as a direct result of COVID-19;
  • The employee has become the breadwinner or major support for a household because the head of household has died as a direct result of COVID-19;
  • The employee has to quit his or her job as a direct result of COVID-19; or
  • The employee’s place of employment is closed as a direct result of COVID-19.

Further, weekly benefits will include an additional $600 per week benefit on top of the state-funded benefit, and benefits may extend to 39 weeks or to December 31, 2020, when the benefits end. The additional 13 weeks of unemployment benefits consist of the federally funded $600 per week only. The $600 amount is not prorated for employees who have reduced hours.

Traditionally, there is a one-week waiting period to obtain benefits. New Hampshire, Massachusetts, and Rhode Island each waived the waiting period, and the CARES Act does so as well.

Can I lower my employees’ wages?

Yes. For New Hampshire employers, any change must be done in writing and signed by the employee. For all employers, remember that the Fair Labor Standards Act still applies and you must be mindful of ensuring that employees receive no less than the minimum wage for all hours work. The U.S. Department of Labor published a helpful worksheet on this subject last year.

Can I reduce my employees’ hours?

Yes, you can, but the Fair Labor Standards Act still applies and you must be mindful of the differences between exempt and non-exempt employees, as well as minimum wage requirements. The U.S. Department of Labor published a helpful worksheet on this subject last year.

Do I have to pay my employees who are working remotely the same as they would receive if working on site?

Yes. Hourly workers must track their time as they normally would, even if a new system for doing so must be established, and any overtime should be paid as it normally would.

What if I need to layoff a lot of employees?

You may be triggering a “mini” WARN Act requirement to make notices to the affected employees and state and local officials. In New Hampshire, the Department of Employment Security has information as to how to make these notices here when a business contemplates laying off 25 or more employees.

Massachusetts and Rhode Island follow the federal WARN Act, which applies to employers with 100 or more full-time workers. Employers must give a 60-day notice of a closing or mass layoff to affected employees, as well as notice to the appropriate local chief elected official (i.e., a mayor), the Dislocated Worker Unit of the State Department of Labor, and any collective bargaining representative if the employees are union members. In Massachusetts, the MassHire Department of Career Services offers a Rapid Response team that will help the workers. Rhode Island also has a Rapid Response Service.

When does the new Families First Coronavirus Response Act go into effect and who does it impact?

April 1, 2020. Employers are mostly concerned with two components: the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. Both provisions apply to private employers with fewer than 500 employees. Small businesses with fewer than 50 employees may be exempt. The U.S. Department of Labor has a basic summary of these laws here.

There is a period of non-enforcement that runs 30 from the Act’s enactment (March 18, 2020). This means that the U.S. DOL will not bring an enforcement action against an employer for non-compliance through April 17, 2020 if the employer made reasonable efforts to comply with the Act. With that said, employers still must make every effort to comply with this new law through April 17, 2020.

The U.S. DOL has also published a notice that explains employees’ rights under the act. You can download a copy of it here.

Do I have to grant leave for an employee to care for her son or daughter when the school is providing online learning? Doesn’t that mean that the school is still open?

Most likely, yes. Schools are deemed “closed” even if there is online learning provided. If a child is too young to stay home alone to do school work, then the employee has a qualifying reason to take leave under the new Act.

What should I require my employees seeking leave provide me with for documentation?

The “normal” FMLA rules are still play and employees should still provide adequate documentation that the employer can then use to seek tax credit under the FFCRA. At the same time, however, the CDC has also advised against overloading the health system by demanding providers’ notes. Also, not all sick patients are going to be able to obtain a COVID-19 test to determine whether they actually have the disease. Thus, it is wise to be somewhat flexible in asking for certification of the need for sick leave at this time.

For employees seeking leave to care for a child, you may request notification showing that the school, daycare, or other place of child care is closed. This may be harder, though, in situations where an individual such as an au pair, nanny, or grandparent provides care.

In families with two parents or two guardians, are both of them able to take leave at the same time if their child or children do not have care available, either through school or childcare provider?

No. Two parents in the same household should not be taking leave together based only on the need to care for children. If possible to do so, parents may choose to take expanded FMLA leave intermittently and schedule days where one parent works and one cares for the child. If one parent is ill or told to self-quarantine, then the other parent make take leave to care for the child.

I have a small business with fewer than 50 employees. Does the FMLA expansion in the Families First Coronavirus Response Act apply to me?

Yes, although certain hardships may exempt small businesses with fewer than 50 employees, including religious or nonprofit organizations. A small business may claim this exemption if:

  1. The provision of paid sick leave or expanded family and medical leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity;
  2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
  3. The small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

If a small employer decides to deny these benefits to an employee whose child’s school or daycare is closed, the small employer must document the facts that meet the above criteria to justify the denial. That documentation does not need to be sent to the U.S. Department of Labor, but rather should be retained on file by the employer.

My business provides healthcare and I heard that there is an exemption in the FFCRA for certain employers. Does that mean that I do not have to offer this leave?

Yes, there is an exemption that is available for employers who feel that choosing the exemption is the right choice. The U.S. Department of Labor asks that employers be judicious in this decision. Also, the choice to exercise this exemption does not impact an employee’s earned sick, personal, or vacation leave.

As explained in both the DOL’s Questions & Answers and the Act’s regulations, “heath care provider” is a broad term that goes beyond doctors and nurses. Rather, “a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.” Thus, the DOL contemplates exempting administrative staff. This is a much broader definition than what is used for determining who is able diagnose a serious health condition warranting leave from work.

Further, the DOL includes individuals who are “employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility.”

Walk me through these six “qualifying” reasons for the Emergency Paid Sick Leave Act.

The EPSLA provides six reasons for qualifying for leave. Some of those reasons will entitle the employee to full pay for 10 work days while the remaining reasons entitle the employee to 2/3 pay. The six qualifying reasons are:

  1. 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 healthcare provider to self-quarantine due to concerns relating to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
    1. Symptoms include fever, dry cough, shortness of breath, or other symptoms identified by the CDC.
    2. The employee can take leave while waiting for a medical appointment and attending that appointment, but may not take leave without seeking a medical diagnosis
  4. The employee is caring for an individual who is subject to an order as described in reason (1) or has been advised to self-quarantine as described in reason (2);
  5. The employee is caring for his or her son or daughter whose school or place of care has been closed or whose childcare is unavailable due to COVID-19 related reasons; or
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and Secretary of Labor.

Reasons (1), (2), and (3) qualify an employee to earn up to 80 hours of paid sick leave at the greater of the employee’s regular rate of pay or up to $511 per day and $5,110 in the aggregate.

Reasons (4), (5), and (6) qualify the employee to earn up to 80 hours of paid sick leave at the greater of 2/3 the regular rate of pay, up to $200 per day and $2,000 in the aggregate.

Reason (5) will also allow employees to take an additional 10 weeks of partially paid expanded FMLA leave, so long as the employee had been employed for at least 30 days before asking for the leave.

Part-time employees are eligible for leave for the total number of hours that they would normally be scheduled to work over the 10 day period.

Finally, these reasons assume that the employee cannot perform his or her work remotely, either through telework or being able to perform tasks outside of the worksite.

What if I have an employee who has already used FLMA leave? Does the expansion double the amount of paid leave?

No. Employees still only have 12 weeks available in a given year, regardless of whether the FMLA leave is under the “normal” law or the “expanded law.” However, the employee may be eligible for paid sick leave under the Emergency Paid Sick Leave Act, which is a new leave requirement that will be effective on April 1, 2020.

I have an employee whom I fired and who now says that she qualifies for expanded FMLA leave under the new Act. Is that true?

No. The Family First Coronavirus Response Act is not retroactive. It applies on April 1, 2020.

Can my employees take the expanded FMLA leave on an intermittent basis?

Yes, but this may apply differently for workers who work remotely and for those who must be at the workplace. Overall, though, the FMLA leave must not go beyond 12 weeks.

A person who takes leave due to COVID-19 must adhere to the appropriate guidelines for returning to work when they are no longer contagious, and therefore intermittent leave may not be an option.

Teleworkers may more appropriately use this expanded FMLA leave to accommodate children who are at home and who require supervision, or who wish to modify their schedule due to a sick dependent at home.

The U.S. Department of Labor encourages collaboration between employers and employees to achieve flexibility.

Some of my employees are eligible for both expanded FLMA and Emergency Paid Sick Leave. Are they able to take both leaves?

Yes, but these leaves run concurrently and therefore the employees would be capped at 12 weeks leave. The Emergency Paid Sick Leave covers two weeks of paid leave, and that can cover the initial unpaid ten days under the expanded FMLA. After the first ten workdays, those employees will then receive 2/3 of their regular rate of pay for the hours they would have been scheduled to work during the next ten weeks. Because the Fair Labor Standards Act applies, regular rate includes commissions, tips, and piece rate compensation.

Because of these expanded paid leave Acts, may I move my employees to these benefits so that I do not have to pay out vacation time?

No. The employees may choose to use paid vacation or sick leave that you already offer prior to electing to use either Emergency Paid Sick Leave or expanded FMLA leave.

I have tried to encourage furloughed employees to sign-up for unemployment. May they receive both unemployment benefits and paid leave under the new Acts?

No. Employees who are receiving sick leave benefits are not eligible for unemployment insurance benefits. With that said, you should look to the NH Employment Security Department, the Massachusetts Department of Unemployment Assistance, or the Rhode Island Department of Labor and Training for specific qualification rules. And, employees who exhaust paid leave may look to unemployment insurance benefits as their next step of coverage if they are unable to return to work due to COVID-19.

What if an employee is already taking a leave of absence? Can that employee then transition to the expanded FMLA leave?

Possibly. It depends on why the employee is on leave to begin with. If it is a voluntary leave, then the answer is yes, so long as the employee has a qualifying reason that prevents the employee from being able to work (onsite or remotely). A mandatory leave of absence, though, such as a furlough, is not going to qualify and the employee should look to unemployment insurance through the state.

I have an employee who is currently out on workers’ compensation or short term disability. Can that employee take emergency paid sick leave or expanded FMLA leave?

Probably not, unless you have an employee who was permitted to return to modified or light duty work and who has now encountered a qualifying reason (i.e., told to quarantine, lack of childcare) that prevents that employee from working. An employee who was not otherwise working and is already receiving benefits like workers’ compensation or disability will not be eligible for either emergency paid sick leave of expanded FMLA.

Can I take the temperature of my employees?

Normally, you cannot because this would be considered a medical examination. Because of the pandemic, though, the U.S. EEOC offered guidance allowing employers to take employees’ temperatures because the CDC and local health authorities have acknowledged that COVID-19 spreads through the community.

Please note, though, that a lack of fever does not guarantee that an employee is infection-free.

I know that health information is confidential, but what if one of my employees contracts or is suspected to have COVID-19? Can I share that information?

You can share that employees may have been exposed to COVID-19 and you should investigate that potential exposure, but you should not disclose the specific employee’s identity.

When can employees return to work?

Because our health systems are strained, the CDC recommends that employers refrain from asking for a healthcare provider’s note for employees who are sick or who want to return from work.

Generally, common sense will apply, but we recommend the CDC’s strategies for determining when healthcare workers may return to work. This looks to when employees’ symptoms have significantly improved and a set time has passed.

Most people with mild symptoms are not being tested. In such cases, the CDC recommends that the employee should not return until: a) at least three days have passed since “recovery,” i.e., the resolution of respiratory symptoms such as a fever, cough, and shortness of breath; and b) at least 7 days have passed since those symptoms first appeared.

If an employee has a positive test result, then he or she should not return until: a) the employee is fever-free without the use of medications; b) respiratory symptoms have improved; and c) they receive negative results from a COVID-19 molecular assay from at least two consecutive specimens, timed about 24 hours apart.

Employees who receive a negative test result may return to work when they are fever free and have improved respiratory symptoms.

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If you would like to talk through a particular scenario, our Labor and Employment Practice Group will be happy to discuss your individual needs.

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