COVID-19 As We Enter May: What Should Employers Be Thinking About?
By: Megan Erickson Moritz
While legal considerations will vary by business priorities, practicalities, and industry, we have seen several recurring topics on employers’ minds as we begin a new month in this coronavirus pandemic. Below, I’ve outlined a quick list of topics to make sure your company is on top of:
Leave requirements under Families First Coronavirus Response Act (“FFCRA”)
Many employers are still trying to understand obligations related to the two kinds of new federal leave requirements under the FFCRA, including nuances of the Emergency Paid Sick Leave requirements and the expanded emergency family leave requirements for employees who have kids at home without school or childcare. We have been helping with the required notices, rolling out temporary workplace policies (and then updating those policies, as this dynamic situation requires), and have also been fielding questions about the related tax credits, and how FFCRA leave works in conjunction with the Paycheck Protection Program (“PPP”).
What to do with certain “high risk” workers
We also have been helping businesses handle concerns about workers with certain underlying health conditions or who fall into other high-risk categories. Some employees may be reluctant to return, some may refuse to return, and some employers are the ones concerned about bringing these folks back. ADA obligations related to accommodations, privacy, and perceived disability remain in place, but there are some unique ways the rules apply in the midst of this public health crisis. Employers with more than 50 employees have traditional FMLA requirements to consider as well. As was true before COVID-19 demanded our attention: compliance demands vis-à-vis medical issues in the workplace remains complicated.
Potential abuse or fraud related to new unemployment insurance compensation
We have been in close contact with legal counsel at Iowa Workforce Development since the coronavirus reared its head, and have been monitoring the agency’s evolving rules and enforcement priorities each step of the way. We continue to help clients understand various conflicting messages out of IWD (such as its changing position on use of paid leave, etc), as well as navigating the many challenges inherent in the unemployment insurance process right now under the CARES Act and due to the temporary suspension of fact finding hearings.
Interpreting OSHA and CDC guidance, and other applicable safety and health standards
Outlining appropriate standards for practices and policies on screening, quarantining, isolating, returning to work, and necessary personal protective equipment pose some thorny questions right now. Determining the proper protocols is anything but straightforward, and we’ve been working with clients to interpret the applicable guidance on these interrelated issues. (For example, understanding the difference between the 14-day quarantine period versus ending isolation after 72 hours without symptoms, exceptions for essential workers, etc.) Employers should develop or update plans for handling confirmed or suspected cases, as well as other exposure control mechanisms.
Returning to work / reopening
Many of the issues above are surfacing in the context of businesses considering how to reopen as restrictions loosen, which has also raised many questions related to recalling furloughed employees, implications of employee retention or recall on PPP loan forgiveness, and whether/when/what rehire paperwork may be required. Ultimately, we’re working with clients to develop business plans and next steps in the context of continued COVID-19 developments, tailored to individual business needs.
If you would like to discuss this content further, contact Megan Erickson Moritz or another BrownWinick attorney to help tackle the unique workplace challenges posed by the novel coronavirus pandemic. Employers with questions about handling or responding to any of these (or related) issues should contact their legal counsel.