COVID-19: News and Updates |
| Special #24 - April 23, 2020 |
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Articles and Updates Today
- Minimum Basic Operations to reopen Georgia Businesses / Governor Kemp's Executive Order From Dublin-Laurens County Chamber of Commerce
- White House Guidelines To States For Reopening April 16, 2020
- Greater Macon Chamber: Friday Town Hall Forum with Congressman Doug Collins Apr 24, 2020 10:30 AM Eastern Time
- ¶46,884 FFCRA enforcement begins; concurrent application of employer policies and paid leave addressed — AGENCY GUIDANCE, Apr. 23, 2020
- News Release: U.S. Department of Labor Ends Temporary Non-Enforcement of Paid Leave Protections to Help American Workers During Coronavirus Pandemic April 20, 2020
- Legal Bulletin: Employment-related COVID-19 Litigation Has Begun Constangy, Brooks, Smith & Prophete,LLP April 22, 2020
- Georgia Department of Public Health COVID-19 Daily Status Report
* Note: If you have any employment law/HR topics or issues you would like to see us cover in the News and Updates please email us at chris@georgiaemployers.org.
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| | Live Webinar Presenters: Mel Haas and Jonathan Martin
Constangy, Smith, Brooks & Prophete Attorneys *Space limited
Overview
While everyone has been adjusting to Georgia’s month long “shelter in place,” business leaders may not yet have considered what the workplace will be like when we return to the “new normal.”
Well, unions have. So have plaintiff’s attorneys.
And DOL, OSHA, and the EEOC.
Are you prepared? Probably not.
Mel Haas and Jonathan Martin will discuss the Governor Kemp’s Executive Order, the new requirements for re-opened workplaces, safety measures for employees, legal compliance under the new legislation, what to do when employees that refuse to return to work that is available because they’d rather have unemployment, and the union’s new hot topic – COVID-19.
They will help you prepare for the “new normal” and help you avoid costly mistakes in the future.
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Contact Governor’s Office of Constituent Services Call if you need an immediate response with a time-sensitive issue. COVID-19 Hotline: (844) 442-2681
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| | | READ: White House Guidelines To States For Reopening
April 16, 2020 |
| | | | | Friday 2/24/20 @10:30AM
ZOOM MEETING REGISTRATION:
After registering, you will receive a confirmation email containing information about joining the webinar.
Note: If you cannot make the town hall meeting, we will post a link to the recorded conversation on maconchamber.com and notify you as soon as it is available.
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| | | | ¶46,884 FFCRA enforcement begins; concurrent application of employer policies and paid leave addressed — AGENCY GUIDANCE
Apr. 23, 2020
From: GEA HR Answers Now
The temporary period of non-enforcement of paid leave protections under the Families First Coronavirus Response Act (FFCRA) has ended, the U.S. Department of Labor (DOL) made clear in an announcement. The DOL’s Wage and Hour Division has also offered clarification around when employers may require employees to run emergency paid sick leave or expanded family and medical leave under the FFCRA concurrently with existing leave under employer policies.
Delayed enforcement. In its periodically updated series of questions and answers on the emergency family leave and emergency paid sick leave under the FFCRA, the DOL advised that it would not bring enforcement actions against employers for violations of the FFCRA occurring within 30 days of the enactment (March 18 through April 17, 2020), provided the employer has made reasonable, good-faith efforts to comply with the Act.
However, the DOL reserved its right to exercise enforcement authority for violations during this period where an employer acted willfully, failed to provide a written commitment to future compliance, or failed to remedy a violation upon notification.
April 1 effective date. The FFCRA leave provisions were effective April 1, and so the DOL expected employers to comply with these provisions on the effective date despite the limited stay of enforcement until April 17. Now that the DOL is fully enforcing the FFCRA, it will retroactively enforce violations to April 1, if employers have not remedied them.
Time to get up to speed. During the non-enforcement period, the WHD provided guidance and education about the new law’s requirements to aid American workers and enable covered employers to come into compliance as the nation continues to battle the coronavirus pandemic.
To resolve issues that have arisen with providing FFCRA-required leave, the WHD has explained employers’ obligations and has assisted employers with getting money into the hands of workers. Educational outreach efforts will continue as enforcement begins in order to ensure compliance with the law and to maximize its benefits for workers and employers alike, the DOL said.
More on concurrent leave. The DOL also provided additional insight in its Q&As about the circumstances under which an employer may require an employee to use existing leave under a company policy concurrently with the new FFCRA leave provisions.
Paid emergency sick leave. Under the FFCRA’s emergency paid sick leave provisions, paid sick leave is in addition to any type of paid or unpaid leave that an employer or a collective bargaining agreement provides; consequently, an employer may not require employer-provided paid leave to run concurrently with emergency paid sick leave.
Paid expanded family and medical leave. On the other hand, employers may require that paid leave available under their own policies to allow employees to care for children because their school or place of care is closed or the child care provider is unavailable for COVID-19-related reasons to run concurrently with the paid expanded family and medical leave provided under the FFCRA (the first 10 days of the 12 weeks allotted under these provisions may be unpaid). Here, the employer must pay the employee’s full pay during the leave until the employee has exhausted available paid leave under the employer’s plan — including vacation and/or personal leave (typically not sick or medical leave).
However, the employer will only be able to get tax credits for wages paid at two-thirds of the employee’s regular rate of pay, up to the daily and aggregate limits of $200 per day or $10,000 in total.
Where the employee exhausts available paid leave under the employer’s plan, but has more paid expanded and medical family leave available, the employee will receive any remaining paid expanded and medical family leave in the amounts and subject to the daily and aggregate limits.
Further, provided both the employer and the employee agree (and subject to federal or state law), paid leave provided by an employer may supplement two-thirds pay for emergency family and medical leave so that the employee may receive the full amount of the employee’s normal compensation.
At the employee’s election. The WHD also explained that an employee may elect, but an employer may not require it, to take paid emergency sick leave or paid leave under the employer’s plan for the first two weeks of unpaid expanded family and medical leave, but not both. However, where an employee has used some or all paid sick leave available under the FFCRA, any remaining portion of that employee’s unpaid of expanded family and medical leave may be unpaid.
During this period of unpaid expanded family and medical leave, the employee may elect — but the employer may not require it — to use paid leave under the employer’s policies that would be available to the employee to take in order to care for children because their school or place of care is closed or the child care provider is unavailable due to a COVID-19-related reason concurrently with the unpaid leave.
Further information. For additional information about the interaction between employer policies and paid leave requirements under the FFCRA, as well as available tax credits, see the following Q&As:
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| | | News Release
April 20, 2020
WASHINGTON, DC – The U.S. Department of Labor announced today the end of the temporary period of non-enforcement of paid leave protections under the Families First Coronavirus Response Act (FFCRA).
The non-enforcement period allowed the department’s Wage and Hour Division (WHD) to offer extensive guidance and education about the law’s requirements, which aided American workers and enabled employers covered by the new law to come into compliance as the nation continues to battle the coronavirus pandemic.
“With millions of Americans eligible for new and expanded leave programs, the U.S. Department of Labor is working tirelessly to answer the public’s questions and conduct outreach to groups and individuals so that employers nationwide provide employees with the benefits they need,” said Wage and Hour Division Administrator Cheryl Stanton. “We have taken hundreds of complaints and are working to resolve them as soon as possible.”
To resolve issues that have arisen with providing FFCRA-required leave, WHD has explained employers’ obligations and has assisted employers with getting money into the hands of workers. Educational outreach efforts will continue as enforcement begins in order to ensure compliance with the law and to maximize its benefits for workers and employers alike.
FFCRA helps combat the workplace effects of the coronavirus by reimbursing America’s private employers with fewer than 500 employees with tax credits for the cost of providing employees with paid leave for specified reasons related to the coronavirus. The law enables employers to keep their workers on their payrolls, while at the same time ensuring that workers do not have to choose between their paychecks and the public health measures needed to combat the virus.
WHD offers extensive plain-language guidance on the requirements of the law, including Questions and Answers, a Fact Sheet for Employees and a Fact Sheet for Employers, available in both English and Spanish, required workplace posters for employers, and an in-depth FFCRA Webinar.
WHD provides additional information on common issues employers and employees face when responding to the coronavirus, and its effects on wages and hours worked under the Fair Labor Standards Act and job-protected leave under the Family and Medical Leave Act at
https://www.dol.gov/agencies/whd/pandemic
For more information about the laws enforced by the WHD, call 866-4US-WAGE, or visit www.dol.gov/agencies/whd
The mission of the Department of Labor is to foster, promote and develop the welfare of the wage earners, job seekers and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights.
Agency Wage and Hour Division
Date: April 20, 2020
Release Number
20-651-NAT
Contact: Emily Weeks
Phone Number: 202-693-4676
Email: weeks.emily.c@dol.gov
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| | | LEGAL BULLETIN
Constangy, Brooks, Smith & Prophete,LLP
Employment-related COVID-19 Litigation Has Begun
April 22, 2020
The self-proclaimed first wrongful death lawsuit concerning an employee dying from complications of COVID-19 contracted while working has been filed. On April 6, 2020, the estate of Wando Evans filed suit in Illinois state court against his former employer, Wal-Mart, and the company’s landlord, alleging negligence and “willful and wanton misconduct and reckless disregard” for the health and safety of employees, which allegedly led to the employee contracting COVID-19. The suit alleges that a second employee from the same store also died from COVID-19 complications.
The suit alleges that Wal-Mart breached its duties to the Chicago-area employee by, among other things, negligently failing to
- Clean and sterilize the store;
- Implement and enforce social distancing guidelines issued by the United States and Illinois;
- Provide employees with cleaning agents and personal protective equipment, such as masks, latex gloves, or other devices designed to prevent a COVID-19 infection;
- Warn employees that various individuals were experiencing symptoms and may have been infected by COVID-19, “which was present and active within the store”;
- Adequately respond to employees at the store who communicated they were experiencing symptoms of COVID-19;
- Follow the guidance from the Occupational Health and Safety Administration and the Centers for Disease Control and Prevention on preparing workplaces for COVID-19;
- Develop an infectious disease preparedness and response plan;
- Cease operations of the store when it knew or should have known employees and others in the store were experiencing symptoms of COVID-19;
- Train supervisors and employees on procedures to minimize the risk of contracting COVID-19; and
- Periodically evaluate employees and prohibit employees experiencing COVID-19 symptoms from working at or entering the store.
Most of these alleged failings are taken directly from guidance issued by OSHA and the CDC about preparing for and handling COVID-19 in the workplace. While employers should remain aware of and attempt to follow CDC and OSHA guidance, employers should also understand that following such guidance isn’t a complete shield to litigation. Indeed, the guidance isn’t even legally binding. While courts may give some deference to the guidance—particularly under these emergency circumstances—courts may also ignore the guidance if they conclude that it conflicts with federal, state, or local laws or promulgated regulations.
For example, the OSHA guidance recommends that employers develop an infectious disease preparedness and response plan, which is sensible advice. But OSHA recommends that the plans consider the risk associated with “[w]orkers’ individual risk factors (e.g., older age; presence of chronic medical conditions, including immunocompromising conditions, pregnancy).” This advice should raise a red flag for employers as each of the risk factors listed are protected classes under anti-discrimination laws. While it may be appropriate for employers to engage in an interactive dialogue with individual employees who fall within these groups about reasonable accommodations, those discussions should be based on that employee’s requests and circumstances—not a predetermined decision about disparate treatment for certain groups.
Additionally, administrative guidance isn’t always clear cut and sometimes it gives deference to the employer’s judgment in response to actual conditions, even though plaintiffs’ lawyers may treat such guidance as a checklist to be followed instead of flexible guidelines that are dependent on actual circumstances. For example, OSHA guidance recognizes that employers could attempt to reduce the risk of employee exposure through engineering controls, administrative controls, safe work practices, and PPE. But the guidance doesn’t require every employer to implement all aspects of each control. Instead, it recognizes there are advantages and disadvantages to each type of measure, including ease of implementation, effectiveness, and cost, which can also include supply chain disruptions impacting the employer’s ability to implement a control measure.
Given these uncertainties and the evolving nature of the administrative guidance, employers cannot completely eliminate the risk of litigation related to COVID-19. However, there are some strategies employers can consider to avoid this litigation or prepare a defense against it:
- Review the pertinent workers’ compensation laws. In many states, allegations that an employer’s conduct (or lack of conduct) caused the employee to contract an illness in the workplace may be preempted by the exclusivity provisions of that state’s workers’ compensation law. In other words, employers may be able to argue that these allegations fall within the exclusive jurisdiction of the state’s workers’ compensation agency, regardless of whether the claims would ultimately be successful. Understanding the jurisdictions in which this defense would or wouldn’t be viable could be an important tool in assessing risk and deciding how to distribute scarce resources.
- Contemporaneously document information used to make decisions related to COVID-19. Information related to the pandemic has evolved rapidly. Government guidance has changed over time—sometimes in conflicting ways—and employers’ reactions have changed over time. What was a reasonable reaction in February may not have been reasonable in mid-March; and what was reasonable in mid-March may not have been reasonable by early April. Consequently, it’s important for employers to document the information on which they are relying at the time of each decision and to understand where that documentation is located.
- Document reasons for any prioritized implementation of health and safety measures. Similarly, where employers have prioritized implementation decisions—whether based on cost, supply chain issues, local conditions (including local stay-at-home orders or public health guidance), or other factors—understanding and documenting the reasoning behind those prioritization decisions at the time they were made could be important defense evidence. To that end, employers should also consider what portions of the company’s decision-making involve attorney-client and work-product privileges and what portions will be available for disclosure during litigation.
- Create and identify an infectious-disease response team. Employers should identify their infectious-disease response team with a dedicated coordinator. This team can include representatives from senior management, safety, facilities management, security, human resources, or other departments. Identifying this team provides several advantages. It allows for more rapid, responsive, and streamlined decision-making in response to quickly changing conditions impacting multiple business stakeholders. It can create a clear point of contact for local management faced with questions and decisions concerning local conditions. It also leads to identifiable defense witnesses who can support the employer’s decision-making processes.
- Communicate with and educate both managers and employees. Clear communication is critically important. The more employees can understand the conditions under which they are working, the known facts or government guidance surrounding COVID-19, how their employer is prioritizing their health and safety, how to respond to sickness or symptoms in their workplace (whether those symptoms are their own, a coworker’s, or a customer’s), the expectations for their job performance during these abnormal times, and the options available to them should they have concerns or issues, then the less likely they are to view their circumstances as a potential lawsuit.
The COVID-19 pandemic has presented new and unique legal challenges for employers. Our highly experienced attorneys are here to assist employers in navigating these uncharted waters.
Charles Eberhardt is a law clerk working in Constangy’s Kansas City Office.
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| | | Georgia Department of Public Health COVID-19 Daily Status Report
Georgia Department of Public Health COVID-19 Daily Status Report For: 04/23/2020
These data represent confirmed cases of COVID-19 reported to the Georgia Department of Public Health as of 04/23/2020 12:22:57.
A confirmed case is defined as a person who has tested positive for 2019 novel coronavirus.
COVID-19 Confirmed Cases: No. Cases (%)
Total 21512 (100%)
Hospitalized 4069 (18.92%)
Deaths 872 (4.05%)
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Georgia Employers' Association |
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