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COVID-19

I have a convenience store location in a city that has a mandatory mask ordinance – Columbia MO. Do we have to post a sign on the door saying mask required and if so do we have to have staff enforce it with the public. I feel as if this puts our staff in a position to be harassed by people who disagree with the ordinance.

We need to read the actual order. Here are the FAQs for Columbia https://www.como.gov/CMS/pressreleases/downloadfile.php?id=2464

Here is the order: https://www.como.gov/wp-content/uploads/B168-20A-AKA-Face-Mask-Ordinance.pdf

I am a business owner/manager. How do I notify customers of this ordinance? It is recommended that businesses place signs on entrances to notify customers/visitors of the mask requirement. PHHS has created signs that all businesses can print and place on their doors, or businesses can create their own signage.

How can violations be reported? Violations of the mask ordinance can be reported by emailing city@como.gov or by calling 573.874.CITY. If a customer at a business refuses to wear a mask and is causing immediate danger to the businesses’ staff, please call 911.

Your not required to be the mask police. Do your best, post the sign and the rest is up to the public.

Tag:  Face Coverings

We are less than 50 employees so only have to comply with FMLA as it has been modified by the FFCRA. We had many employees take family leave due to COVID-19 related school/daycare closures in March-May and we made the decision to allow intermittent leave. I am anticipating these same people will be in a similar situation this fall. If they have already been on family leave but did not use the entire 12 weeks allowed, do we need to allow them to resume leave up to the full 12 weeks if they need it because their children can’t return to school in the fall?

Yes, the EFMLA intermittent leave works just like regular FMLA.

Example 1:

Pat normally works 38 hours per week. To find the total # of hours Pat has available over 12 weeks we multiply 38 x 12 = 456 hours. When Pat takes intermittent leave the employer will reduce the hour bank of EFMLA.

Example 2:

Pat has taken 30 hours of EFMLA and now need consistent weeks off to care for a child with no school or day care availability. The original entitlement was 456 hours and Pat has used 30 hours leaving a balance of 426 hour. To find the number of weeks still available to Pat use this formula: 426 / 38 hours in a normal workweek = 11.21 weeks still available. To find the .21 hourly equivalent, do this: 38 x .21 = 7.98 hours. Round that number to 8 and Pat’s remaining EFMLA entitlement = 11 weeks and 8 hours.

We can check this math by adding back all of the used and unused time. We remember that Pat works an average of 38 hours / week.

11 weeks + (30 hours + 8 hours) = 11 weeks + 1 week = 12 weeks.

Tag: EFMLA  FFCRA FMLA

Our small business is in California; because we are deemed “necessary business”, my husband and I as owners come into the office part time, and we have been able to have our employees work remotely. I have read some of the attached material and gone to the attached links but I may have missed the information pertaining to our situation: We have a young man who is not performing well due to his being at home, and want to bring him back in to increase his productivity, but he refuses to come back, claiming he doesn’t want to “endanger his family’s health”, even though we know FOR CERTAIN he has friends over his house just for fun. Can you advise?

This is a tricky topic. There are so many pieces to consider. If you require only this one worker to come back into the office be sure you can prove this is a performance issue that no other employee is facing. If you can prove this, then refusing to come back in can only be valid under very few circumstances. The key is making sure the issues in play are very specific to this worker who will eventually come to feel he is being singled out.

I cannot provide legal advice and I know employers don’t want to lose anyone, but you must balance that with the requirement for people to perform and be of value to the company unless there is a covered reason not to work. In reality, you may have to lose and hopefully replace someone. However, the lawsuits and DOL actions are already beginning to pour in. So, establishing good faith and reasonable basis have never been more important.

Let’s unpack this a bit.

Employees are allowed to refuse work under certain conditions. https://www.osha.gov/right-to-refuse.html  Cal/OSHA upholds the same rights.

Your right to refuse to do a task is protected if all of the following conditions are met:

  • Where possible, you have asked the employer to eliminate the danger, and the employer failed to do so; and
  • You refused to work in “good faith.” This means that you must genuinely believe that an imminent danger exists; and
  • A reasonable person would agree that there is a real danger of death or serious injury; and    **KEY**
  • There isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

You should take the following steps:

  • Ask your employer to correct the hazard, or to assign other work;
  • Tell your employer that you won’t perform the work unless and until the hazard is corrected; and
  • Remain at the worksite until ordered to leave by your employer.

Once these steps have been followed, the EE cannot be terminated.

There could also be ADA issues if the refusal relates to a covered disability. Each employee must be reviewed individually. Document your steps as you determine whether a disability exists – mental or physical – and then use the interactive process as applicable. The EEOC says you do not have to accommodate the fear of getting and giving COVID-19 to a family member. If he is personally high-risk, then we have a different story. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#D.1

https://askjan.org/disabilities/Mental-Health-Impairments.cfm

https://askjan.org/topics/interactive.cfm

Finally, you must consider that if the employee returns, there may be a question of FFCRA leave for covered reasons. https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave

Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

  1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. has been advised by a health care provider to self-quarantine related to COVID-19;
  3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
  6. is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Under the FFCRA, an employee qualifies for expanded family leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.

So, all of that will need to be unpacked and reviewed so you will not be found in violation of the FFCRA.

Outside of this, employees who refuse to perform work that is productive and valuable are possibly resigning or abandoning the job. This is why we recommend you issue a letter where the EE can decline employment. We have a sample on the COVID-19 page of our site. https://helpdesksuites.com/coronavirus-covid-19-resource-center/

As always, you may want to speak with local legal counsel to be sure you are not missing any specific details regarding your particular case.

So, now let’s say all of this is in place and there are no protections. He just doesn’t want to come into the office. We will assume the office is safe and you have put several procedures in place to be sure there is little risk of exposure to COVID-19. Everyone is 6 feet apart, masks, gloves, cleaners, soap, water, sanitizer, and a higher level cleaning schedule for the workplace are some of these precautions. https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html  When you have documented all efforts and his negative response, ask him if his refusal to work in the office is then a resignation? He will say no and you will tell him the only option is coming into work and again reassure him that you are taking high-level measures to keep everyone safe.

Ultimately, you may end up with a termination, but when he applies for UI, you will have the opportunity to tell the real story of why he left.

Tags: FFCRA  Refusal to work  Afraid to work

Just had our 1st employee that has been in direct contact with a family member that tested positive for COVID-19. She is having trouble getting into the free testing sites and states she is going to just self-quarantine for the 14 days. She has no symptoms at this point. We have offered her to work remotely (which she did for several weeks before returning to the office) but now states due to circumstances (no internet) she can’t work from home. Can we have her use her PTO for the 10 days of work missed or does she qualify for the EPSL pay as long as she completes the Request Form for Emergency Paid Sick Leave? Or do we need other documentation? I was holding out for doctor or testing documentation to give the EPSL. She is willing to use her PTO but I want to do the right thing, too.

With this one we must look at the actual law.

Qualifying Reasons for Leave: https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave

Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

  1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. has been advised by a health care provider to self-quarantine related to COVID-19;
  3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
  6. is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

You can see that none of the 6 reasons apply to her. She is not having symptoms, does not plan to seek a medical diagnosis, and has not been told to quarantine by a Dr or government agency. She may use her PTO in this case because as of today, she does not qualify under FFCRA.

Tags: FFCRA

If a part time restaurant employee test positive for Covid-19 and is out, do we have to pay them 80 hours or is it just for full time employees?

You pay them based on their regular average workweek. Here is the guidance. https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

How do I count hours worked by a part-time employee for purposes of paid sick leave or expanded family and medical leave?A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. Therefore, you calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that.

If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.

Tags: EPSL  EFMLA  FFCRA

If a business has less than 50 employees are they exempt from paying an employee that was home due to a child having the Cornavirus? FFCRA says full time employees should get up to 2 weeks of paid sick leave but are businesses with less than 50 employees exempt?

Unless you are a healthcare provider, businesses under 50 are only able to be exempt from the 12 weeks of paid leave for school closures. The 10 days (up to 80 hours) of EPSL for reasons 1-4 and 6 (in the future) applies to all employers except health care providers. https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave

Here is the guidance: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

  1. When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:
    1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
    2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
    3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
  1. If I am a small business with fewer than 50 employees, am I exempt from the requirements to provide paid sick leave or expanded family and medical leave?A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:
    • employer employs fewer than 50 employees;
    • leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
    • an authorized officer of the business has determined that at least one of the three conditions described in Question 58 is satisfied.

Tags: FFCRA  EPSL  EFMLA

Has Virginia passed a law or ordinance requiring 24 hours notice to employees when a co-worker tests positive for COVID-19?

It looks like they have voted to move forward effective July 15th. This is the first rule of it’s kind and is very hard to find a permanent copy or tracker on any of the legal sites. There are several marked up copies that are linked in the articles below. The DOLI website doesn’t even have a solid copy of the order. But, there is one with July 15th as a go date. The 24 hour rule is part of this temporary order. It is supposed to last for 18 months.

https://www.doli.virginia.gov/wp-content/uploads/2020/06/COVID-19-ETS-Emg-Reg-Infectious-Disease-Prevention-SARS-CoV-2-and-COVID-19-REVISED-FINAL-6.23.2020-WTC.pdf

https://www.natlawreview.com/article/virginia-employees-protected-retaliation-raising-concerns-about-covid-19-workplace

https://www.zuckermanlaw.com/virginia_covid19_whistleblower_protection/

Tags: Coronavirus  Virginia

Pennsylvania (and other states) are “recommending” that individuals quarantine if they travel to a high COVID case state or region. If employees go on vacation to these states and the employer does have a policy that requires them to quarantine when they get back to work, how is the employee’s “paid or unpaid” time dealt with. Can an employer require the employee to take vacation time for and additional two weeks after the employee returns? Does the federal sick leave cover that time? Is the time unpaid if the employee has not vacation time?

This has been a hot topic on the Facebook group. So, we asked our attorney and here is what he said. Let me know if you have other questions.

Question

As of last week, Pennsylvania is requiring anyone that traveled to a list of 14 states, they must quarantine for 14 days. Would this be covered under the FFCRA leave pay? If so, can employers block employees from traveling to states on a quarantine list for vacation? Seems like employees are getting paid time off for vacation and then two more weeks paid time off for quarantine

Answer

The Families First Coronavirus Response Act (“FFCRA”) requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.  Generally, the FFCRA provides that employees of covered employers are eligible for:

  • Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis.

So, the employee is likely covered under the FFCRA leave pay.

As for restricting employee travel, that is generally not allowed for the simple reason that it is an otherwise legal activity.  Plus, that seems like a pretty heavy invasion into the employee’s personal life. I would not try to restrict travel to any location that has not been listed as a restricted zone by the CDC or some other state or federal government entity.

However, you can try the following:

  • Educate employees on the current risks of travel, which include being potentially stranded due to government travel restrictions and/or subject to a federally mandated quarantine when the employee returns from travel
  • To the extent the employee has the ability to work remotely, require the employee to travel with equipment (e.g. a laptop, portable internet connection, etc.) that would allow the employee to work if he or she is stranded due to travel bans being imposed
  • Inform the employee of interim changes to company policies or practices that may impact their ability to return to work, and how those policies might apply in the event that an employee is stranded or quarantined
  • Monitor those employees returning from such travel for signs of illness

Tags: Travel  Coronavirus  Connecticut  Florida  Massachusetts  New York  New Jersey

We had an employee call in sick today with a sore throat, cough and tiredness. How should we proceed? Can we require testing for COVID19? How long can we ask him to stay home? When do we notify people he may have had contact with and how will affect their work status?

You can require testing. He should immediately quarantine for up to 14 days if symptoms subside. If he tests positive, 2 negative tests are recommended before he returns. But, there is also another strategy for allowing a return by monitoring symptoms and time of infection. You should notify employees that you are watching a POTENTIAL exposure if it will be several days before results are in. Keep in mind that in many areas it is taking 8-10 days to get results when using the free testing centers. You should also be taking steps to sanitize the workplace and put in place a preparedness plan for communicable diseases. We have a sample in HDD PnP Library. https://helpdesksuites.com/policy-and-procedure-library/   Search PREP.

Here is some CDC guidance

https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/testing-non-healthcare-workplaces.html

https://www.cdc.gov/coronavirus/2019-ncov/hcp/disposition-in-home-patients.html

Here is the link to OSHA’s guidance:  https://www.osha.gov/SLTC/covid-19/

Here is the EEOC guidance that talks about testing https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

Tag: Exposure