COVID-19 – Page 13

April 21, 2020June 29, 2023

Can and should employers require antibody testing as a return-to-work condition?

We all want to get back to work as safely and as quickly as possible.

One thing that would allow us to do this with confidence is widespread antibody testing, a quick blood test to reveal if one carries the COVID-19 antibodies from which an employer can presume exposure, immunity and a reasonable degree of safety for an employee to return to work.

This testing, however, raises two critical questions.

1. Can employers legally require it?
2. Should employers rely on it as an indicia of safety?

Can an employer legally require antibody testing?

The “can” question is easy to answer. According to the EEOC, because coronavirus is a “direct threat,” employers have carte blanche to test employees, including antibody testing as a return-to-work condition.

The Americans with Disabilities Act prohibits an employer from making disability-related inquiries or engaging in medical examinations unless they are job-related and consistent with business necessity, which includes when an employee will pose a direct threat due to a medical condition.

Also read: What a business operating in the time of coronavirus cannot look like

A “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” If an individual with a disability poses a direct threat despite reasonable accommodation, the nondiscrimination provisions of the ADA do not protect him or her, and disability-related inquiries and medical examinations are legal and permissible.

Per the EEOC, “As of March 2020, the COVID-19 pandemic meets the direct threat standard,” because “a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.”

Thus, because COVID-19 is a direct threat, employers absolutely can require antibody testing as a condition for an employee to return to work.

Should an employer rely on antibody testing as an indicia of safety?

The more difficult question is whether an employer “should” require it and rely on it.

On Sunday, The New York Times ran a cautionary article, taking major issue with the reliability of COVID-19 antibody tests, which yet do not even have FDA approval.

More than 90 companies have jumped into the market since the F.D.A. eased its rules and allowed antibody tests to be sold without formal federal review or approval.

Some of those companies are start-ups; others have established records. In a federal guidance document on March 16, the F.D.A. required them to validate their results on their own and notify the agency that they had done so.…

Most of the tests offered are rapid tests that can be assessed in a doctor’s office — or, eventually, even at home — and provide simple yes-or-no results. Makers of the tests have aggressively marketed them to businesses and doctors, and thousands of Americans have already taken them, costing a patient roughly $60 to $115.

Rapid tests are by far the easiest to administer. But they are also the most unreliable — so much so that the World Health Organization recommends against their use.

These tests have a false-positive rate of 5 percent (or higher), a significant margin of error when you consider that in a community with a five percent infection rate you’d have as many false positive as actual positives.

Even labs that are marketing these antibody tests to employers are cautioning against their reliability.

This test hasn’t been reviewed by the FDA. Negative results don’t rule out SARS-CoV-2 infection, particularly in those who have been in contact with the virus. Follow-up testing with a molecular diagnostic lab should be considered to rule out infection in these individuals. Results from antibody testing shouldn’t be used as the sole basis to diagnose or exclude SARS-CoV-2 infection. Positive results may be due to past or present infection with non-SARS-CoV-2 coronavirus strains, such as coronavirus HKU1, NL63, OC43, or 229E.

In other words, these tests aren’t reliable because the FDA hasn’t reviewed them, and because of risk of a strand of coronavirus other than COVID-19 flagging a false-positive result.
What does all of this mean?

First, employers should not and cannot rely on currently available antibody tests as the magic bullet to get employees safely back to work. They are simply not sufficiently reliable.

Secondly, for the time being, employers will have to rely on measures other than testing to keep employees safe.

Third and finally, the government needs to ramp up the approval of reliable testing. Without readily available quick and reliable tests we are shooting in the dark by bringing employees back to work, and we will continue to spread infections no matter how many other steps businesses take to attempt safely to return employees to work.

April 13, 2020June 29, 2023

Making sense of substituting employer-provided leave for EPSL and EFMLA under the FFCRA

employment law, labor law, overtime records

One of the more confounding sets of rules under the Families First Coronavirus Response Act is when employers can require employees to substitute an employer’s own provided leave (which, for the sake of convenience I’ll refer to throughout as “PTO”) for paid leave — the 80 hours of paid sick leave (“EPSL”) or the 12 weeks of expanded family and medical leave (“EFMLA”) — mandated by the Families First Coronavirus Response Act.

I am going to make an attempt to explain these rules, but I’ll fully admit that it’s still not 100 percent clear to me. The text of the FFCRA seems to suggest that an employer can never require the substitution of PTO.

Also read: The DOL’s Families First Coronavirus Response Act regulations contain some big changes

The DOL’s proposed regulations, however, muddy the waters, which were muddied even further by an amendment to those proposed regulations published last Friday, which deleted language from the regulations’ explanatory discussion relating to the substitution of PTO for EFMLA.

So let’s try to sort it all out.

1. An employer can never require an employee to substitute PTO for EPSL. The employee can elect that substitution, but it can never be forced by the employer.

2. If an employee is taking leave to care for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, the employee qualifies for both EPSL and EFMLA. It is the employee’s sole choice whether to use EPSL during the initial two unpaid weeks of EFMLA (for which both types of leave will run concurrently), or save the EPSL for later use for another qualifying reason (or, I suppose, tack it on after the expiration of the FMLA leave). An employer cannot force an employee to use EPSL during those initial two unpaid weeks of EFMLA.

3. Here’s where it gets tricky. When can an employer require an employee to use PTO during EFMLA? Section 826.23(c) of the regulations is the key provision.

Section 2612(d)(2)(A) of the FMLA shall be applied, provided however, that the Eligible Employee may elect, and the Employer may require the Eligible Employee, to use only leave that would be available to the Eligible Employee for the purpose set forth in § 826.20(b) under the Employer’s existing policies, such as personal leave or paid time off. Any leave that an Eligible Employee elects to use or that an Employer requires the Eligible Employee to use would run concurrently with Expanded Family and Medical Leave taken under this section.

(Section 2612(d)(2)(A) of the FMLA permits an employer to require the substitution of PTO for FMLA leave.)

Also read: Coronavirus update: The mechanics of the tax credit for paid family and sick leave under FFCRA

What does this all mean? It means that an employer can require an employee to use available PTO during the unpaid portion of an EFMLA school closure of loss-of-child care coronavirus-related leave. If an employer so requires, the PTO runs concurrently with the EFMLA allotment.

4. An employer and employee can agree to “top-off” EPSL or EFMLA (that is, true up the employee’s pay through the substitution of PTO so that the employee earns his or her full pay). But the employer cannot require it.

All clear, correct? Or clear as mud?

Disagree with my interpretation? Drop a comment below and let’s try to figure it out together.

April 12, 2020June 29, 2023

Coronavirus Update: The top 5 things I’m doing besides working

How are you filling your non-working time?

We used to fill our time running our kids all over the place for various lessons, rehearsals, and gigs. Now, however, we have a lot of down-time, with nothing to do. So how am I filling my time when I’m not working? (Which, btw, I’ve been doing a lot of over the past month.)

1. Walking … a lot. We are walking a ton of miles. As in 4 to 6 miles per day. The rings on my Apple Watch are very happy. Partly because we have two high-energy dogs (one being an 11-month-old puppy) that can’t go to daycare to tire themselves out. And partly because what else are we going to do? Let me make a few observations from my miles of walking. First, thank you to most for maintaining social distance. People (more or less) have been really good about keeping six feet of separation. Secondly, people have been really nice to each other. Lots of, “How are yous” from total strangers (from a socially acceptable distance). Third, it appears that many people do not think kids can carry or catch COVID-19. Because I’ve seen lots of kids playing together in close groups (basketball, football, walking, etc.). Parents, I know this sucks for your kids. It’s going to suck more if they transmit this virus to each other. Please, let’s try to maintain social distance for a few more weeks, and we can all start to get back to normal socializing again (although it’s going to take me a while to feel comfortable shaking someone’s hand or getting in an elevator).

2. Cooking and baking. Because we always seem to be running around a lot, we are always grabbing food out. We must eat out four times a week. Without nowhere to go, I’ve been cooking every night. I’ve also been baking (a combination of comfort and nesting, I think). The cooking is starting to get old. I really do love to cook, but I also love the option of not cooking. When this is all over, I think I’ll be exercising that option a bunch. Also, if anyone wants the world’s greatest gluten-free chocolate chip cookie recipe, hit me up.

3. Grazing all day. One of the downsides of working from home (aside from the a-hole puppy who barks, and goes crazy, and generally likes to annoy us and his big sister) is the easy availability of food and constant snacking. Thankfully, no. 1 above makes up for these added comfort calories.

4. Virtual cocktail hours. Since we can’t connect with people in person, we’ve been connecting remotely via Zoom. We have weekly check-ins with family (real and our Fake ID band family). We’ve also connected with friends as far as the West Coast and as near as across the street. It’s been a great (albeit different) way to keep in touch and re-connect. And, cocktail hour.

5. Slowing way down. One of the unintended benefits of sheltering at home is that we have been forced to sloooooow down. No longer running to and from place to place, we have the time to sit and play a family game or watch a family movie (***** for “Almost Famous,” even though I forgot that Kate Hudson shows her boob; ***1/2 for “Onward,” not one of Pixar’s best, but still enjoyable and sweet.) It’s not like we weren’t connected as a family pre-coronavirus, but this has forced us to reconnect in a good way. And no one is sick of anyone else … yet.

April 8, 2020June 29, 2023

Remote workers aren’t lazy. They’re humans responding to a crisis

If remote employees aren’t living up to productivity expectations right now, employers shouldn’t immediately jump to “slacking off” as the reason.

Not only is this skewed worldview insulting to employees, but this degree of virtual micromanagement is insensitive to remote workers during the coronavirus pandemic.

Also read: Remote Work is About Trust, Not Rules

In fact, studies show that employees are usually more productive at home than in the office. One survey of 1,004 full-time employees across the United States found that on average, remote employees worked 1.4 more days every month, or 16.8 more days every year, than those who worked in an office setting. Nicholas Bloom, an economics professor at Stanford University, found similar results in his two-year study about working from home. Remote working made employees more productive and less likely to quit, according to his study.

Yet there are some paranoid managers who envision their remote workers lying on the couch, shirking work and watching trashy daytime TV. This isn’t the reality for most workers in normal times, let alone during a pandemic.

Remote workers aren’t on vacation right now. They’re dealing with the very real consequences of a deadly global outbreak. Most people are quarantining at home (if their job allows), avoiding people as much as they can, staying as safe as possible at the grocery store and home-schooling their children on top of their work and home responsibilities.

Meanwhile, as more companies turn to layoffs and furloughs, even employed people have financial worries. What happens if they lose their job and employer-provided health insurance? What about workers who live paycheck to paycheck and worry about affording rent and food if they get laid off? The vast majority of employees won’t use working from home as an excuse to do less. Instead they’ll do what they can to stay relevant to their employer and not lose their job and their health care.

The COVID-19 pandemic has brought further responsibilities to many employee populations, like caregivers of children or sick family members. These people don’t have more freedom and free time due to their work-from-home status. According to a survey of 4,293 working parents that was conducted from March 28 through March 30, only 46.23 percent of men and 25.14 percent of women responded that they are able to juggle work and watching children. Even considering this “unequal divide of household labor” and how mothers are impacted most, most fathers are struggling, as well.

Meanwhile, even if someone doesn’t take care of a child or sick family member, they still need to care for themselves. Maintaining one’s mental health is important during a pandemic, whether you simply feel more stressed than usual or have a mental illness that requires treatment and attention.

According to the Centers for Disease Control and Prevention, people who may respond more strongly to the stress of the COVID-19 crisis include those who are especially vulnerable to the virus (older people and those with chronic diseases), children and teens, people with mental health or substance abuse issues and caregivers and health care providers who are helping others deal with health issues.

Months before COVID-19 spread to its first victim, I wrote a story for Workforce about presenteeism, and recently on LinkedIn Jude Smith Rachele, co-founder and CEO at management consulting company Abundant Sun Ltd, commented on the story. She made an astute observation concerning COVID-19 and presenteeism.

“[It] seems the world has gone bonkers about sick leave and time off from work. I’m hoping despite what we are facing that many people STILL have paid vacation leave due to them. This work at home thing — and this even more ever-present ‘digital presenteeism at work’ — may make us forget that we can take time off even if we or those around us are not ill. Remember? We are supposed to take holidays [and] vacations to refresh,” she wrote.

This is a great comment, and not something I’ve seen a lot from employers. I understand that businesses as well as individuals are suffering right now. I’m not suggesting that companies should shift all focus from operations to comforting employees. But there needs to be a balance.

Rather than expecting employees to be 100 percent productive all the time and expecting them to not take any time off unless it’s for the “right reasons,” employers also need to show sympathy to their workforces right now. People aren’t robots. They respond to the world around them. What we’re going through now with COVID-19 is anxiety-provoking at best and life-destroying at worst.

Several months ago I interviewed Morgan Young, vice president of client services, employee benefits at Holmes Murphy, and what she said about productivity expectations is especially relevant now.

“You can acknowledge that fact that people are going to have struggles in their life and nobody is going to be at peak performance 100 percent of the time, and that’s OK. Employers can have a healthy conversation about that and know that, ‘If I can get [employees] through the valleys they have and back to their peak, we’re doing great,’ ” she said.

April 8, 2020June 29, 2023

If you require employees to wait in line for a coronavirus fever check, pay them for waiting

Bloomberg Law asks whether employers are “responsible for paying workers for the time it takes to record their body temperatures before entering the workplace.”

To me, this question doesn’t require a legal analysis but a common-sense application of basic decency. If your employees are queuing before entering work because you are requiring them to pass a temperature check, pay them … period.

Since this is a legal blog, however, I might as well look beyond common sense and examine the laws impacted by this issue—the ADA and the FLSA.

The ADA typically prohibits employers from taking employees’ temperatures as an unlawful medical examination. Because the WHO has classified coronavirus as a pandemic, however, just about all medical exam issues under the ADA are temporarily moot. According to the EEOC, among other coronavirus prevention measures, employers may measure employees’ temperatures. This issue, at least for now, is pretty cut and dry.

The FLSA issue is a little more nuanced. In Integrity Staffing Solutions v. Busk, the Supreme Court held that the FLSA only requires employers to compensate employees for time spent performing “preliminary” (pre-shift) and “postliminary” (post-shift) activities that are “integral and indispensable” to an employee’s principal activities. What activities are “integral and indispensable?” Those that are (1) “necessary to the principal work performed” and (2) “done for the benefit of the employer.”

In Busk, for example, the Court held that post-shift security screenings were not “integral and indispensable” for an Amazon warehouse employee, because such screenings are not “an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment,” and the employer “could have eliminated the screenings altogether without impairing the employees’ ability to complete their work.”

According to the Bloomberg Law article, employers could look to Busk to argue that pre-shift temperature checks, even if mandatory, are not “integral and indispensable” and therefore can be unpaid. (For what it’s worth, I think a just as good, or better, argument is that preliminary temperature checks to protect employees from a deadly virus are integral, indispensable, and compensable.)

Busk or no Busk, this isn’t a “what does the law allow” issue; this is a “what’s right is right” issue. If you’re requiring your employees to queue in a line to take their temperature before you’ll let them enter the workplace, pay them. Don’t be cheap and don’t count pennies.

Your employees are scared. They are risking their own personal health and safety, and that of everyone who lives in their homes, to keep your essential business up and running. They could just as easily stay home, limit their exposure, and collect unemployment.

What they need is your compassion, not your penny-pinching. Times are tough for everyone. I get it. But your business shouldn’t go belly up if you pay each employee for a few extra minutes of time each day, especially when the federal government is going to reimburse you through your Paycheck Protection Program loan. (You did apply for your loan, right?)

At the end of this pandemic, many businesses will no longer exist. If there’s such a thing as karma, one of the deciding factors in which ones survive will be how they treated their employees.

* * *

Don’t forget that I’ll live on Zoom tomorrow, April 9, from 11:30 am – 12:30, open paid sick leave and eFMLA issues, and taking your coronavirus questions. And Norah has said she will drop in and share another song. You can access the Zoominar here: https://zoom.us/j/983559955

April 6, 2020April 6, 2020

Coronavirus Update: We CARES about unemployment

The past two weeks have seen a record 10 million new unemployment claims. This number does not even include many of the millions more who have had their hours or wages cut as businesses continue to struggle with the realities of operating in a world turned upside down by coronavirus. Sadly, we should expect this situation to get a lot worse before it starts to get better.

Thankfully for each worker unemployed or underemployed as a result of coronavirus, the CARES Act provides significant financial relief. It contains the following seven unemployment expansion and enhancement provisions.

1. Pandemic Unemployment Compensation (FPUC) — This program provides funding for an additional $600 per week in unemployment benefits through July 31, 2020, for any individual who becomes unemployed, partially unemployed, or unable or unavailable to work or telework because of any of the following coronavirus related reasons:

- The individual has been diagnosed with coronavirus or is experiencing symptoms of coronavirus and seeking a medical diagnosis.
- A member of the individual’s household has been diagnosed with coronavirus.

- The individual is providing care for a family member or a member of the individual’s household who has been diagnosed with coronavirus.

- A child or other person in the household for which the individual has primary caregiving responsibility is unable to attend school or another facility that is closed as a direct result of the coronavirus public health emergency and such school or facility care is required for the individual to work.

- the individual is unable to reach the place of employment because of a quarantine imposed as a direct result of the coronavirus public health emergency.

- The individual is unable to reach the place of employment because the individual has been advised by a health care provider to self-quarantine due to concerns related to coronavirus.

- The individual was scheduled to commence employment and does not have a job or is unable to reach the job as a direct result of the coronavirus public health emergency.

- The individual has become the breadwinner or major support for a household because the head of the household has died as a direct result of coronavirus.

- The individual has to quit his or her job as a direct result of coronavirus (which one could interpret as covering employees who quit out of fear of contracting coronavirus).

- The individual’s place of employment is closed as a direct result of the coronavirus public health emergency.

Additionally, this program contains a non-reduction rule, which prohibits states from changing how they compute regular unemployment benefits to reduce the average weekly benefit amounts or the number of weeks of benefits payable to impacted employees.

In Ohio, this means that a minimum wage employee with no dependents would see his weekly unemployment benefit increase from $171 to $771 (an annualized salary of $40,092), and an employee with three dependents maxed out on unemployment would see his weekly benefit increase from $647 to $1,247 (an annualized salary of $64,884).

Because of this substantial increase, I am worried that many employees will decide that they are better off (either financially or for health-related reasons) quitting their jobs and collecting unemployment, leaving essential employers with huge labor gaps to fill to maintain basis minimum operations. For this reason, essential employers should be communicating with their employees on a daily basis about all of the steps they are doing to ensure, as best as possible their employees’ health and safety.

2. Pandemic Unemployment Assistance (PUA) — This program provides unemployment compensation through December 31, 2020, for individuals who are self-employed, seeking part-time employment, or who otherwise would not qualify for regular unemployment benefits because of one of the above-listed coronavirus related reasons.

3. Emergency unemployment relief for governmental entities and non-profit organizations — This program provides federal reimbursement of state unemployment payments made to governmental entities and non-profit organizations through December 31, 2020, regardless of whether the unemployment claim is related to coronavirus.

4. Temporary full federal funding of the first week of compensable regular unemployment for states with no waiting week — Through December 31, 2020, states that waive any waiting periods and provide unemployment benefits to applicants during their first week of unemployment will receive 100 percent federal funding for benefits paid during that initial week.

5. Emergency state staffing flexibility — States as provided flexibility through December 31, 2020, to modify their unemployment compensation laws and policies with respect to work-search requirements, waiting weeks, good cause standards, and employer experience rating. Ohio, for example, has eliminated its work-search requirement and waiting periods, and is not counting coronavirus related unemployment claims against an employer’s experience rating.

6. Pandemic Emergency Unemployment Compensation (PEUC) — This program provides up to 13 weeks of additional unemployment benefits through December 31, 2020, for individuals who have exhausted all rights to regular unemployment compensation under state or federal law or have no rights to regular unemployment compensation under any other state or federal law. The law requires individuals seeking PEUC benefits to be able to work, available for work, and actively seeking work. States, however, are required to offer flexibility in meeting the “actively seeking work” requirement for individuals unable to search for work because of coronavirus, including illness, quarantine, or movement restrictions.

7. Temporary financing, agreements, and grants for Short-Time Compensation (STC) — This program provides pro-rated unemployment benefits for up to 26 weeks through December 31, 2020, to employees who have had their hours reduced in lieu of layoff.

April 1, 2020June 29, 2023

The rise of the sick, distressed and oppressed worker

Why does it take an international pandemic that costs tens of thousands of lives to reveal the worst in some employers and government leaders who put themselves ahead of the welfare of workers?

OK, that broke one of Rick’s cardinal rules of writing: Never lead your story with a question. But in this case, I think a question, rhetorical as it is, embellishes the senseless selfishness of some of the world’s largest and wealthiest corporations that treat its workers as if they are nothing more than disposable widgets.

Let’s start with Amazon, which of course owns Whole Paycheck — oops, upscale grocery chain Whole Foods. According to the Wall Street Journal, a Whole Foods workers group urged employees to call in sick on March 31 after seeking health care coverage for its part-time workers and paid leave for all workers who must isolate or self-quarantine as a result of coronavirus. Whole Foods employees also sought improved workplace safety measures including hazard pay and sick pay for employees who may be sick but haven’t been tested for the coronavirus.

We’ve seen a similar corporate insensitivity on the part of grocery delivery service Instacart. Some employees stayed off the job March 30 demanding greater pay and better access to disinfectant and paid leave.

Really, Instacart and Amazon, is it asking too much to provide these workers with more humane working conditions? You’ve both amassed fortunes on the backs of these low-paid employees. As you and dozens of other retailers desperately seek to hire thousands of new employees, providing them with a bottle of hand sanitizer and paid leave if they are sick is the least you could do for your workers who are being lauded nationwide as heroes.

And frankly, it never occurred to me just a few short weeks ago as Instacart shoppers scurried past me filling brown paper bags with spaghetti sauce and Cinnamon Toast Crunch cereal that these workers would be risking their health and safety for customers. I’m guessing it never crossed their minds, either.

Yet here we find ourselves. As an insidious virus ravages our population, we now come face-to-face with an age-old standoff between labor and employer. I won’t quite say that the downtrodden workers will throw off their chains and “expropriate the expropriators,” but these companies need to quickly understand that the coronavirus is creating a radically new workplace.

While it’s just mind-boggling to consider hazard pay for hourly grocery store employees, the sad reality is these people are on the front lines spending hour after hour, day after day restocking shelves and being downright pleasant to customers — any one of whom could be a ticking time bomb spreading COVID-19.

In fact, big-box grocer Costco is among the companies (Target and Walmart, too) that are temporarily doling out extra money to its employees. Costco is paying $2 more per hour from March 2 to April 5 for its U.S. workers.

But even that temporary perk comes at a price. A family member employed by Kirkland, Washington-based Costco now understandably lives in fear of contracting the virus.

She was extremely grateful when the memo came from corporate leaders about the temporary bump in pay. Three weeks later, however, it was clear that working in an essential job among the public was taking an emotional toll on her.

She was literally crying the other night as she told me that she knows two people who have died from the deadly virus. The reality that it lurks in any customer she comes in contact with has set in.

The bump in pay was appreciated, but what is the cost? The physical toll on first responders has been apparent for several weeks. We are just now awakening to the mental and emotional anguish these employees are revealing. I doubt any retail employee ever envisioned themselves as a first responder.

As my colleague Andie Burjek so adeptly penned recently, “COVID-19 clearly has severe and potentially deadly physical symptoms. But that doesn’t mean mental health is something that can be sidelined for now.”

I don’t think I am overstating here, but governments and employers across the globe need to set aside their differences and undertake drastic measures to salve the emotional and physical needs of workers. As New York Gov. Andrew Cuomo said recently, COVID-19 is colorblind.

“This virus doesn’t discriminate — it attacks everyone, and it attacks everywhere,” Cuomo stated March 30. “There are no red states, and there are no blue states, and there are no red casualties, and there are no blue casualties. It is red, white and blue. If there was ever a moment for unity, this is it.”

I opened this post with a question so I’ll close with one, too.

Is unity among government and business leaders to ease the burden on the world’s working people too much to ask?

April 1, 2020June 29, 2023

Coronavirus update: The mechanics of the tax credit for paid family and sick leave under FFCRA

One of the questions I have received the most since the passage of the Families First Coronavirus Response Act is how employers claim the tax credit available under the Act for paid leave provided to employees.

Late on March 31, the IRS published a detailed list of FAQs explaining all of the mechanics of this tax credit. I want to focus on the key employment law piece of these FAQ, how an employer should substantiate its eligibility for tax credits, i.e., the documentation you need to keep.

The IRS discusses this important issue in Questions 44–46. I’ll break it all down for you here.

What information should an “Eligible Employer” (a business with fewer than 500 employees) receive from an employee to substantiate eligibility for the sick leave or family leave tax credits?

The IRS says that an employee’s leave request must be in writing and must include:

The employee’s name;
The date(s) for which leave is requested;
A statement of the coronavirus related reason the employee is requesting leave and written support for such reason; and
A statement that the employee is unable to work, including by telework, for such reason.

Also read: A Q&A and the DOL’s FFCRA notice

Additionally, for a leave request based on a quarantine order or self-quarantine advice (the employee’s or someone else’s for whom the employee is providing care), the employee’s statement should include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine, and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

For a leave request based on a school closing or child care provider unavailability, the statement from the employee should include:

The name and age of the child (or children) to be cared for;
The name of the school that has closed or place of care that is unavailable; and
A representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave.

Also, note that there is a cut-off age at age 13 for care during daylight hours. An employee unable to work or telework during daylight hours because of a need to care for a child age 14 and older must also provide a statement that special circumstances exist requiring the employee to provide care.

Additionally, for all paid leave under the FFCRA for which an employer claims a tax credit, the employer must also provide:

Documentation to show how the employer determined the amount of qualified sick and family leave wages paid to employees that are eligible for the credit, including records of work, telework and qualified sick leave and qualified family leave.
Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages.
Copies of any completed Forms 7200, Advance of Employer Credits Due To COVID-19, that the employer submitted to the IRS.
Copies of the completed Forms 941, Employer’s Quarterly Federal Tax Return, that the employer submitted to the IRS (or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third party payer regarding the employer’s entitlement to the credit claimed on Form 941).

Employers must keep these records for at least four years after the date the tax becomes due or is paid, whichever comes later, and should be available for IRS review.

I encourage all employers to have a conversation with their accountant and/or tax lawyer before filing your next quarterly payroll taxes to make sure you are claiming this exemption correctly.

March 31, 2020October 18, 2024

Communicate mental health resources to employees during the COVID-19 outbreak

mental health, resources, health care, etc.

COVID-19 clearly has severe and potentially deadly physical symptoms. But that doesn’t mean mental health is something that can be sidelined for now.

Parents with children they must homeschool are feeling the stress of working, teaching and having little to no free time to take care of themselves. People who have certain mental illnesses may find themselves especially vulnerable in times of social or physical distancing.

And employees on the front lines like health care workers, delivery people and grocery store employees may find themselves stressed due to the nature of their jobs and having a greater risk of interacting with people who have COVID-19.

“With the workplace a defining part of many individuals’ lives, managing employee morale and mental health, as well as providing resources and support to help them cope, is understandably top of mind with employers,” said Brad Hammock, co-chair of employment law firm Littler Mendelson’s Workplace Safety & Health Practice Group and a leader of the firm’s COVID-19 Task Force, in a press release.

While businesses must manage many other legal and operational issues, progressive employers are also focusing on resources and means of support to help employees cope, according according to a recent report from Littler.

According to the Centers for Disease Control and Prevention, people who may respond more strongly to the stress of the COVID-19 crisis include those are especially vulnerable to the virus (older people and those with chronic diseases), children and teens, people with mental health or substance abuse issues and caregivers and health care providers who are helping others deal with health issues.

The CDC provides ways to cope with mental health issues — including taking breaks from watching the news, making time to unwind and connecting with loved ones. But the workplace has a role as well.

Also read: Mental health in low-wage workers

HR plays a central role in tempering employees’ feelings of anxiety, according to Human Resource Executive. “Remind employees that every single person in the organization, including the CEO, is facing unprecedented upheaval, fear and uncertainty — and that the only way to get through this is by pulling together and supporting each other like never before,” the article advised.

Further, while employee assistance programs have generally been underutilized, now is an ideal time to communicate the usefulness of EAPs to employees, according to HRE. EAPs address personal and professional challenges that employees may face, including financial problems, substance abuse issues, grief, family issues and stress. These areas of one’s life are also areas that could be greatly impacted by the COVID-19 outbreak, the article noted.

Nonprofit news organization Marketplace suggests that employers offer and communicate the availability of telehealth mental health care. It also noted that accessible, affordable care is important. For example, Starbucks is offering all U.S.-based employees and their family members with access to 20 free therapy sessions starting April 6. These sessions are available through video appointments as well as in-person appointments.

Also read: The Mental Health Parity Challenge

The Canadian Mental Health Association advises that employers communicate in a reassuring manner. “Know that work will likely be impacted — work will slow down, necessary travel may be canceled. Reassure staff that expectations will shift accordingly, and that’s OK. The company will get through this.”

Organizations can also refer employees to reports indicating that most people who become infected with the virus will recover, the Canadian Mental Health Association noted. They can also emphasize with employees that they know this is a stressful time and that it’s OK to feel anxious.

Onsite health clinics present unique challenges for employers during a pandemic

virtual care, health care systems, onsite clinics

In normal times, accessing health care on the property of an employer is a convenience. However, during the COVID-19 pandemic, such access may stoke safety and hygiene concerns. Patients are supposed to avoid getting medical care unless it’s necessary in order to avoid coming into contact with the virus, and even accessing shared surfaces like biometric time clocks can put employees at risk.

According to Mercer, 17 percent of U.S. employers with at least 500 employees offer primary care through onsite or near-site clinics. During the COVID-19 outbreak in which people must social distance, employers may come across unique challenges with their onsite clinics and need to strategically rethink how to manage them

Mercer’s Worksite Clinic Consulting practice created a guide to manage employer-sponsored clinics during the pandemic.

The guide focuses on best practices to mitigate risk for employees and patients, respond to staffing limitations, identify supply chain barriers and “optimize the interest of public health.” The top six steps are:

Review and update existing plans.
Don’t make staff or patients sick.
Protect staff and patients by implementing new ways of working.
Prepare for absenteeism of staff.
Communicate, communicate, communicate.
Review and address any contractual requirements.
Regulatory considerations.

Just like larger health care systems, all employer health clinics and health workers must be prepared to evaluate and manage risks related to COVID-19. Proper infection-control equipment is a must, and clinic workers must know how to “safely isolate, transport and quarantine potential patients.”

Reducing the number of people requiring face-to-face examinations is necessary and can be accomplished via telehealth phone calls or video appointments.

Clinic staff members may get sick or need to take time off to care for a sick family member. Preparing for staff absenteeism doesn’t necessarily mean employees can’t work just because they can’t visit the clinic. Organizations can “repurpose clinical staff confined to their homes to be part of a virtual care team,” the guide stated. “This team can work together remotely to triage and serve patients via telephone or video visits to forestall the need for an in-person visit.”

Organizations can also support older staff members or those with health conditions by providing them virtual assignments only.

Meanwhile, communication is a key factor in all these steps. Employers should plan to communicate with their staff at least once a day regarding the status of COVID-19 in their community and within their organization, according to the guide. What’s especially important to communicate is how the company is dealing with various issues and challenges brought on by the outbreak.

Also read: During COVID-19 outbreak, utilize internal communications in your company crisis plan

Some communications best practices for employer clinics include:

Establish an emergency response command task force — all departments represented, reporting to the C-suite.
Establish a clinical response team, physician led — a team of clinicians who can track Centers for Disease Control and Prevention and World Health Organization information and summarize and distribute it to employees.
Communicate with the employee population regularly via a patient app.
Post information on the intranet and include information for appointment scheduling, the nurse call hot line and telehealth.
Educate employees on slowing the number of patients to not overwhelm the health care system.
Track lessons learned for post-pandemic response debriefing and process improvement.

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