The COVID-19 Crisis – Business Regulation Updates

Posted on March 24, 2020

FAQ’s for Employers

The effects on business operations due to COVID-19

As the situation with coronavirus (COVID-19) continues to develop, businesses are experiencing many unforeseen and unprecedented situations and finding ourselves at a loss as to how to ensure employee safety and continue to conduct business under the instability that COVID-19 has brought us to.

Below are some frequently asked questions that address some of these concerns. Due to the rapidly changing circumstances, the below should only serve as a guide and is subject to change.

Families First Coronavirus Response Act (FFCRA)
Employers will be able to recover payouts in the form of payroll tax credits, and may be able to get funds on an emergency basis (contact your trusted advisor for more information).

Emergency Family Medical Leave Act (FMLA)

• 12 weeks of PAID leave
• It is important to note that the current bill only provides paid leave for school/child care closures.
• Employees must have worked for the employer for at least 30 calendar days.
• Employers may exclude health care providers and emergency responders.
• The first 10 days may be unpaid.

Public Health Emergency Paid Sick Leave

• Full-time employees must receive 80 hours of Emergency Paid Sick Leave. This can be used for any employees who are diagnosed with COVID-19, who have symptoms, seeking medical treatment, or high risk.
• Part-time employees must receive a prorated amount equal to the number of hours the employee works, on average, over a two-week period. All employees are immediately eligible for Emergency Paid Sick Leave; there is no 30-day requirement.

What if an employee appears sick?

• Employees should be encouraged to stay home if they are sick, even if it’s just a common cold.
• Have a Coronavirus policy that states if employees appear to be sick, they will be sent home and allowed to return once they are symptom-free.

An employee of ours has tested positive for COVID-19. What should we do?

• You should send home all employees who worked closely with that employee for a 14-day period of time to ensure the infection does not spread.
• Before the employee departs, ask them to identify all individuals who worked in close proximity (three to six feet) with them in the previous 14 days to ensure you have a full list of those who should be sent home.
• When sending the employees home, do not identify by name the infected employee or you could risk a violation of confidentiality laws.
• If you work in a shared office building or area, you should inform building management so they can take whatever precautions they deem necessary.
• It is recommended to close off areas used by the ill persons and wait as long as practical before beginning cleaning and disinfection to minimize potential for exposure to respiratory droplets. Open outside doors and windows to increase air circulation in the area. If possible, wait up to 24 hours before beginning cleaning and disinfection.
• Cleaning staff should clean and disinfect all areas (e.g., offices, bathrooms, and common areas) used by the ill persons, focusing especially on frequently touched surfaces.

Can I take an employee’s temperature at work to determine whether they might be infected?

• Yes. The EEOC confirmed that measuring employees’ body temperatures is permissible given the current circumstances. While the Americans with Disabilities Act (ADA) places restrictions on the inquiries that an employer can make into an employee’s medical status, and the EEOC considers taking an employee’s temperature to be a “medical examination” under the ADA, the federal agency recognizes the need for this action now because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions.
• However, as a practical matter, an employee may be infected with the COVID-19 coronavirus without exhibiting recognized symptoms such as a fever, so temperature checks may not be the most effective method for protecting your workforce.
• If you elect to take employee’s temperature, ensure the safety of those administering the test as they will be coming into contact with each employee and will be at higher risk.

Essential Businesses should provide employees with a proof of work letter in the event they are pulled over in transit while conducting essential business duties. Please contact your trusted advisor for more information.

What do I do if employees refuse to come to work?

• If an employee expresses concerns, communicate steps that the company is taking to ensure employee safety (routine cleaning etc).
• Find out what their main concerns are, and if they disclose, they are high risk, allow them to self-quarantine (FFCRA may apply).
• If an employee is not high risk, but wants to self-quarantine, offer them an unpaid leave of absence or telework if possible.

Do employers still need to complete documentation under CA WARN?

• Yes, even though the 60 day WARN act has been suspended, employers still need to complete all documentation as soon as they are able.

What do I do if I cannot afford to pay my employees?

Temporary leave of absence (LOA)

• Allows employers to keep employees
• Employees are able to use PTO & collect UI
• May be FFCR eligible

Layoff

• May need to issue WARN notices
• Would need to rehire employees at a later date

Reduction in salary/work hours

• Good option if some operations are still running
• Option for employees to Telework
• Employees can recover difference through UI

On March 12, 2020, the Small Business Association (SBA) announced that it would implement new COVID-19 disaster relief lending.

To access these emergency loans, you should contact the SBA disaster assistance customer service center directly. Call 1-800-659-2955 (TTU: 1-800-877-8339) or email disastercustomerservice@sba.gov.