Nearly four weeks ago, the Families First Coronavirus Response Act was passed. Questions remain despite guidance from the Department of Labor: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions and https://www.dol.gov/agencies/whd/ffcra.
DWH asked Don Lawless (https://www.btlaw.com/en/people/offices/grand-rapids/donald-lawless) with Barnes and Thornburg to address the issues now being raised by employers about the FFCRA and managing the current workforce dynamics.
FFCRA and Related COVID-19 Employment Issues
Q: As a starting point, please provide an overview of the Families First Coronavirus Response Act and benefits it extends to employees?
A: The simplest point of entry to obtain an overview of the FFCRA is to review the posting that covered employers needed to put up on April 1:
https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf
In the private sector, the law applies to employers with fewer than 500 employees. It remains in effect until December 31, 2020. It provides for 80 hours of emergency paid sick leave for covered reasons. It provides up to 12 weeks of expanded FMLA (the last ten weeks paid) if the employee is unable to telework because he or she must care for a child. Employers are eligible for a fully refundable tax credit of 100% of the paid leave.
Q: How and when do private-sector employers measure their employee count (to determine if they have fewer than 500 employees)?
A: The employer must count full-time and part-time employees employed within the U.S. at the time the employee would take the leave. So the count is taken at each time an employee takes leave. The big issue now is falling below the 500 threshold due to layoffs. The temporary regulations state at 29 CFR Section 826.40(a)(1)(iii) that the threshold count does not include workers who have been laid off or furloughed and have not subsequently been reemployed. No one saw the exclusion of laid of employees from the count. We have clients with many employees on layoff who now have active workforces at fewer than 500 based on the counting rule adopted in the regulations. This language was a surprise and seems counter to Congress’s intent in targeting the FFCRA to smaller employers.
Q: What legal requirement(s) do I have as an employer to inform and educate employees regarding paid leave benefits under the FFCRA?
A: The only required communication is the mandated posting, which can be found here: https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions. Many employers are taking a “sufficient notice” approach. Namely, if an employee provides sufficient facts that indicate he or she may be eligible for paid leave, the employer engages a discussion to determine if the employee is eligible. Some clients have developed policy statements about the FFCRA, too.
Q: Covered employers want to provide FFCRA paid time off to employees who are entitled to it, but how do they fairly administer the Act?
A: FFCRA Q&A No. 16 lists the information an employee must provide and adds: “In addition to the above information, you must also provide to your employer written documentation in support of your paid sick leave as specified in applicable IRS forms, instructions, and information.” IRS guidance requires “written support” for the FFCRA covered reason for the leave.
Q: As an employer, how does FFCRA impact my ability to furlough or temporarily lay off employees?
A: The FFCRA does not limit an employer’s ability to temporarily lay off workers or temporarily suspend operations. The FFCRA Q&As at nos. 25, 26, and 27 confirm that emergency paid sick leave and expanded FMLA entitlement ends with a lay off; the employee then seeks unemployment. Layoffs need to be supported by operational need, not the desire to avoid providing paid leave under the FFCRA.
Q: A big concern of employers is whether they will be able to attract employees back to work post coronavirus while they are receiving expanded unemployment benefits. Do you believe this will be an issue, and if so, how can employers mitigate this risk?
A: If an employee is recalled to work that cannot be performed remotely and that work is allowable under the stay-at-home order, they are no longer eligible for unemployment benefits. Employers need to lead with credible communication about why the work is essential critical infrastructure work and confirm the steps taken in compliance with all CDC, OSHA, and additional government requirements to assure the workplace is as safe as reasonably possible. Practically, employees faced with the termination of health benefits or their reinstatement will likely return to work.
Q: We hear in the news that there is a resurgence of unions, or employees seeking to unionize, as a result of the working conditions under COVID-19. For smaller employers in the region, will there be a similar effect?
A: Smaller employers are most at-risk, statistically, for a union organizing effort. The primary risk smaller employers face as a result of the COVID-19 crisis relates to the right of employees to engage in protected concerted activity under the federal National Labor Relations Act. Employees have a right to solicit co-workers and come together to protest or object to terms and conditions of employment – including walking off the job. This right is broadly construed and does not have to relate to an effort to organize a union. Employees’ objections to their employer’s response to the COVID-19 crisis can fit within this right. The limits are narrowly applied – such as individual gripes and threats. Employees are provided with a fair amount of leeway. Employers cannot discipline or discharge employees for engaging in such protected conduct; they can be asked to leave the workplace if they refuse to work and be advised that they may be permanently replaced.
Q: Is there anything else employers should be aware of regarding employment law or the effects of new federal/state programs?
A: Employers need to make sure their benefit plans allow for the extension of health benefits to laid-off workers (often a plan amendment is required). There is also the issue of WARN Act compliance if layoffs now look to be indefinite vs. temporary.
As it becomes more available, we also expect that more employers will consider COVID-19 employee testing to determine if it is safe for employees to return to work or to disqualify them for work.
The EEOC issued updated COVID-19 medical examination guidance on April 17: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm
It speaks in terms of asking employee COVID-19 related symptom questions and taking body temperature, and not employer administration of a COVID-19 test, which would be a regulated medical examination under the ADA. Watch for developments in this area.
Q: Don, it has been our experience that companies often wait too long to contact a labor attorney. Are there critical points where you suggest company leadership engages a labor attorney?
A: Qualified labor and employment counsel can add the most value before a legal claim develops. So get us involved in the up-front strategy decisions before the facts are finalized. If one claim can be avoided, the cost of legal counsel and the disruption to the organization is substantially reduced.
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These Q&As are provided for informational purposes only and are not intended to provide legal advice; please consult with legal counsel for advice related to your specific circumstances.
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