Employers should use reasonable diligence to determine the amount of work performed by employees who telework.
In the age of COVID-19, many employers are allowing employees to work-from-home — also known as telework. And, employers are required to pay hourly workers for all work they perform — whether at home or a specific job site. Moreover, employers also have to pay for work they didn’t request — unscheduled work. But, how is an employer supposed to know exactly how much unscheduled work was performed from home? On August 24, 2020, the United States Department of Labor’s Wage & Hour Division (“WHD”) issued guidance on that issue. The guidance (known as Field Assistance Bulletin 2020-5) can be found at this link: FAB 2020-5.
Bulletin 2020-5 focuses on the concept of “reasonable diligence.” Essentially, the bulletin says that employers should establish a system and use “reasonable diligence” to determine the amount of unscheduled work performed. But, the “reasonable diligence” standard also puts obligations on employees. Employees who fail to follow reasonable time reporting procedures may not be entitled to be paid under the terms of the Fair Labor Standards Act.
As with almost all legal issues, the devil is in the details of each situation. Employer’s can’t “bury their head in the sand” and ignore unscheduled work. They also can’t implicitly or overtly discourage or impede accurate time reporting. For example, employers shouldn’t tell employees: “Don’t write down any work that you performed after 5:00.” At the same time, employees can’t ignore well-published time keeping requirements and then complain about not being paid for unscheduled, unreported work.
So, how can employers engage in “reasonable diligence”? Here are some basic steps:
Employers should create a simple time-keeping policy that requires all hourly employees to document all scheduled or unscheduled work.
Any time keeping policy should have a disciplinary component. Employers have to pay for unscheduled, and even unauthorized work. But, in most circumstances, an employer can impose discipline if the time keeping policy is violated. IMPORTANTLY: NEVER WITHHOLD PAY WITHOUT CONSULTING A LAWYER.
Employers should do more than just adopt a policy. They should educate hourly employers and their supervisors on the requirements of the policy. This can be done with e-mails, memoranda and/or employee meetings. Employers should keep any available documentation to prove that the time keeping policy was effectively disseminated.
Obviously, WHD’s guidance is aimed at ensuring that hourly employees are properly paid when they work from home. Yet, the WHD guidance also dovetails nicely with the IRS’s guidance requiring employers to keep adequate documentation to support any award of paid leave under the Families First Coronavirus Response Act. Here’s a link to a blog post that I wrote discussing the IRS’s requirements for documentation of telework: IRS Documentation Requirements.
Employers should proceed cautiously if they want to deny transgender employees the right to use the bathroom of their choice.
In June, the United States Supreme Court issued its landmark decision in Bostock v. Clayton County, 140 S.Ct. 1731 (Jun. 15, 2020). In Bostock, the Court found that discrimination against employees on the basis of sexual orientation or transgender status violates the sex discrimination prohibitions of Title VII of the Civil Rights Act of 1964. Here is a more-detailed blog that I wrote on Bostock: Bostock – LGBTQ+ Decision. A recent decision from the Eleventh Circuit Court of Appeals suggests that it might also be discriminatory to deny transgender individuals access to the bathroom of their chosen gender. See Adams. v. School Board of St. Johns County, No. 18-13592, 2020 WL 4561817 (11th Cir. Aug. 7, 2020).
Adams Involves Schools and Students, Not Employers
Importantly, Adams is not a Title VII case. Instead, it concerned the rights of a transgender student to be free from discrimination in a public school. As a result, the student pursued discrimination claims under the Equal Protection Clause of the United States Constitution and Title IX of the Civil Rights Act.
The sole issue in Adams was the use of restrooms. Drew Adams was assigned the female gender at birth but began to transition to the male gender. He commenced ninth grade and presented as a boy. For his first six weeks as a ninth grader, he used the boys’ restroom. However, he was told that he could no longer use the boys’ restroom when two unidentified girls complained. There were no complaints from boy students who shared the bathroom with Adams. Nevertheless, the school system offered Adams two choices: (1) use a single-stall gender-neutral bathroom; or, (2) use the girls’ facilities. The school board believed that offering single-stall restrooms reconciled accommodations for transgender students with privacy concerns for non-transgender students. Yet, Mr. Adams felt “alienated and humiliated” every time he was required to use the gender-neutral bathroom.
This is a case where facts played a huge role because the school board presented no facts indicating that any male student complained or that any “untoward” activities occurred in the bathroom. As a result, two judges of the Eleventh Circuit repeatedly criticized the “hypothetical” dangers of allowing transgender students to use their chosen restrooms.
The majority also relied heavily upon Bostock when deciding Mr. Adams’s Title IX claim: “Bostock confirmed that workplace discrimination against transgender people is contrary to the law. Neither should this discrimination be tolerated in schools. The School Board’s bathroom policy, as applied to Mr. Adams, singled him out for differential treatment because of his transgender status. It caused him psychological and dignitary harm. We affirm the District Court’s ruling that maintaining this policy violated Title IX.” Adams, 2020 WL 4561817 at *16.
Lessons for Employers
Adams is extremely important for employers, even though it explicitly applies only to the relationship of schools and students. At least two judges of the Eleventh Circuit believe that denial of access to a chosen bathroom is discriminatory. As a result, if employers deny transgender employees the right to utilize their chosen bathroom, their risk-level under Title VII increases.
In my opinion, however, a mere denial of a chosen restroom should not amount to a violation of Title VII. Usually, an employee can only succeed in proving discrimination under Title VII if he or she suffers an “adverse job action.” And, a job action must be “materially” adverse. In other words, if there is monetary risk associated with an action, it will probably be adverse. Since denial of a bathroom doesn’t logically involve denial of money, it should not be enough, by itself, to support a successful Title VII claim.
Despite my views, the EEOC has on at least one occasion found that requiring a transgender woman to use a single-stall bathroom violated Title VII. See Lusardi v. McHugh, EEOC Doc. 0120133395, 2015 WL 1607756 (Apr. 1, 2015). The Lusardi decision originated on Redstone Arsenal in Huntsville. Among other things, a transgender female Army employee was required to use a single-stall “executive” restroom rather than the restroom assigned to women. The EEOC reviews discrimination complaints from federal agencies and determined that the bathroom assignment sufficiently altered the terms and conditions of Ms. Lusardi’s employment to violate Title VII. A copy of the Lusardi opinion can be found here: Lusardi Opinion
Viewed in tandem, the Lusardi and Adams cases should cause employers to think carefully if they decide to deny a transgender employee the opportunity to use their chosen bathroom. Even if I am right, and denial of a bathroom does not, by itself violate Title VII, the denial could still be used against an employer. For example, I think that denial of a chosen bathroom could be one piece of evidence to use in a sexual harassment/hostile work environment claim under Title VII. Typically, an employee must show that their workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Denial of a bathroom might be one factor in finding a “severe or pervasive” work environment.
As I noted in the discussion of Adams, above: facts matter. It’s possible that a different result might be reached in a case where an employer can show that other employees using the restroom complained or that “untoward” conduct occurred. In any case, employers need to consult with their attorneys before taking any action that treats a transgender employee differently.
Frank Lockwood at work — shortly before the fight of his life.
Many of my friends have shared or commented on a video making the rounds on social media from a group called “Frontline Doctors.” At least one of the “shares,” explicitly called COVID-19 a “hoax.” Apparently, some of my friends are upset that Facebook and Twitter are removing the video. I hope that they have actually watched this video. I have.
In the video, a doctor from Houston claims that there is a “cure” for COVID and no need to wear masks. According to her, hydroxychloroquine, combined with other regimens, is the solution.
In my opinion, those statements are irresponsible and openly encourage life-threatening conduct. Therefore, I wholeheartedly endorse removal of those statements from social media platforms.
Some of my friends believe that we should have a public debate about the benefits of hydroxychloroquine. That’s fine. But, please don’t rely solely upon this one doctor’s opinion.
My brother is a true Frontline Doctor. He is a family practice doctor in Stockbridge, Georgia. He treats people with COVID-19. He probably contracted COVID-19 performing his duty for patients. When he got sick, he checked himself into a hospital where he knows the physicians who are treating him. Now, he’s on a ventilator fighting for his life.
If there was a “cure” for COVID, I choose to believe that my brother and/or his team of physicians would have used it. To think otherwise would condemn Frank and millions of other physicians in this country. They would be endangering themselves and their patients by refusing to implement a simple remedy.
I’m not a doctor. I’m not a researcher. I have no way of personally knowing whether hydroxychloroquine helps to fight COVID. But, I know a lot of physicians and I’ve been talking to them regularly as Frank has fought this virus. None of them has suggested hydroxychloroquine would help. And, some of them have explicitly said that it won’t help. If I contract this disease, I’m going to place my life in their hands and follow their treatment.
Please, reach your own conclusions. If you have physicians who are friends, talk with them. To me, they are the best source of information. I’m not qualified to know which studies on the internet are trustworthy. (You may even review my timeline and see that I jokingly shared a link with some friends, who love Korean food, touting the remedial benefits of kimchi. It was later pulled by Facebook for spreading false information.) Instead, I am relying upon my known, trusted sources of information to reach my conclusion.
If you reach the conclusion that hydroxychloroquine can provide benefits in treatment, I support you one-hundred-percent. But, please, also try to determine if hydroxychloroquine is a “cure” for COVID-19. Figure out if there is a need for social distancing. Is there is a need to wear a mask in public?
Kay Ivey issued an order requiring masks for Alabama. (Sort of.)
This morning, Alabama Governor Kay Ivey ordered Alabamians to wear masks in an effort to combat the spread of COVID-19. Here is a link to the updated “Safer at Home” order: Mask Order. The order is effective at 5:00 PM tomorrow, July 16, 2020. Here’s what you need to know:
Masks Are Required in Three Places
Every person is required to wear a mask that covers the nostrils and mouth if they are within six feet of another person in one of the following places:
An indoor space open to the general public;
A vehicle operated by a transportation service; or,
An outdoor space where ten or more people are gathered.
Exceptions Abound
This really wouldn’t be a COVID-19-related order from Kay Ivey if it didn’t contain plenty of exceptions and explicitly protect Alabama’s state religion — football. So, here are the fourteen categories of people who don’t have to wear a mask:
Any person six years of age or younger.
Any person with a medical condition or disability that prevents him or her from wearing a covering. (Prepare for a proliferation of fake ADA mask preemption cards.)
Any person while consuming food or drink, or seated at a restaurant to eat or drink.
Any person who is obtaining a service (for example, a medical or dental procedure) that requires removal of the facial covering in order to perform the service.
Any person who is required to remove the facial covering to confirm his or her identity, such as for security or screening purposes.
Any person who is actively engaged in exercise in a gym or other athletic facility if he or she maintains six feet of separation form persons of another household.
Any person who is directly participating in athletic activities in compliance with the order. (Roll Tide.)
Any person who is in a swimming pool, lake, water attraction, or similar body of water, though wearing a face covering or social distancing is strongly encouraged if safe and practicable. (Point Mallard is already closed for the season. So, this one doesn’t affect me.)
Any person who is seeking to communicate with another person where the ability to see the person’s mouth is essential for communication (such as when the other person has a hearing impairment).
Any person speaking for broadcast or to an audience if the person maintains six feet of separation from person from another household. (After all, Kay’s gotta be seen during her press conferences.)
Any person who is voting, though wearing a face covering is strongly encouraged.
Any person who cannot wear a facial covering because he or she is actively providing or obtaining access to religious worship, though wearing a face covering is strongly encouraged.
Any first responder (including law enforcement officers, firefighters, or emergency medical personnel) if necessary to perform a public-safety function.
Any person performing a job function if wearing a face covering is inconsistent with industry safety standards or a business’s established safety protocols.
Requirements for Employers
Governor Ivey’s order continues to place requirements on employers, who must “take all reasonable steps, where practicable as work duties permit, to protect employees by:”
Encouraging use of masks and facial coverings;
Maintaining six feet of separation between employees;
Regularly disinfecting frequently used items and surfaces;
Encouraging handwashing;
Preventing employees who are sick from coming into contact with other persons;
Facilitating remote working arrangements; and
Minimizing employee travel.
Enforcement
When she announced the order, Governor Ivey said her plan was merely to “inform” people about masks, rather than arrests or fines. She also said the order would be “difficult to enforce.” In short, Kay would like you to wear a mask, but don’t sweat-it if you feel like infecting other people in the interest of maintaining your “freedoms.”
On Monday, the United States Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits employers from taking adverse employment actions based upon the sexual orientation or gender identity of an employee. See Bostock v. Clayton County, Ga., 2020 WL 3146686 (Jun. 15, 2020). The Bostock decision is a groundbreaking reversal of longstanding precedent in the Eleventh Circuit, which includes Alabama. In the past, gay and lesbian employees have enjoyed very limited employment rights, while transgender employees enjoyed some protection. Here is an old blog post providing a good overview of prior law for LGBTQ employees: Emerging LGBT Issues in the Workplace
The Bostock case was initially decided by the Eleventh Circuit Court of Appeals. Gerald Bostock worked as a child welfare advocate for Clayton County, Georgia. After a decade of working for the county, and winning numerous awards, he began participating in a gay recreational softball league. Shortly thereafter, community members made disparaging comments about Mr. Bostock’s sexual orientation and he was ultimately terminated for conduct “unbecoming” a county employee. Mr. Bostock sued, and lost, in the United States District Court for the Northern District of Georgia. On appeal, a panel of the Eleventh Circuit issued a one-page opinion upholding dismissal and adhering to longstanding precedent that “[d]ischarge for homosexuality is not prohibited by Title VII.” Bostock v. Clayton County Bd. of Comms., 723 Fed.Appx. 964 (2018) (quoting Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979).)
The Supreme Court reversed the Eleventh Circuit in a decision authored by Justice Neil Gorsuch. Title VII prohibits discrimination on the basis of “sex.” And, in the first paragraph of his opinion Justice Gorsuch concluded: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex necessarily plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Justice Samuel Alito, writing for a three-justice minority, argued that employers do not discriminate against LGBTQ employees on the basis of their “sex,” but on the basis of their conduct, which would not be prohibited by Title VII. According to Justice Alito, if an employer terminates both men and women for being gay, it draws no distinction on the basis of sex. But, Justice Gorsuch responded to that argument: “[I]t doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee — put differently, if changing the employee’s sex would have yielded a different choice by the employer — a statutory violation has occurred.”
While Bostock is a huge win for LGBTQ employees, it has not resolved all issues involving LGBTQ rights. After all, Justice Gorsuch is a conservative. Thus, he noted that employers with strong religious objections to LGBTQ employees might be protected by the Religious Freedom Restoration Act of 1993. In fact, Justice Gorsuch noted that “[b]ecause the RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supercede Title VII’s commands in appropriate cases.” But, because the RFRA was not before the Court, he made no express ruling on that issue. As a result, there is a strong likelihood that we will see further decisions involving employers like Hobby Lobby whose religious beliefs influence their business plans.
Justice Gorsuch also declined to say whether an employer violates Title VII by requiring sex-segregated bathrooms, locker rooms and dress codes. Instead, he expressly limited his opinion to a situation where an employer fires an individual merely for being gay or transgender.
OSHA is requiring employers to determine if COVID-19 cases are work-related.
Are you an employer? Did one of your employees contract COVID-19? If so, you are required to determine if that COVID-19 is work-related. That’s the new rule announced by the United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”). Here’s a link to OSHA’s announcement: OSHA COVID-19 Recording Guidance
This is a significant reversal of policy by OSHA. Under the Occupational Safety and Health Act, employers are required to record and maintain records of occupational injuries and occupational illnesses. By definition, an “occupational illness” is one that is work-related. Earlier in the pandemic, many employers were concerned that they might be required to record the existence of all COVID-19 cases in their work force. OSHA calmed many of those fears with guidance that it issued on April 10, 2020. Here’s a link that guidance: OSHA’s April Guidance
The April 10 guidance essentially adopted the common-sense position that employers aren’t epidemiologists and shouldn’t be required to determine if a COVID-19 case is work-related. Thus, OSHA said that it would not enforce its recording requirements and would not require employers to determine if COVID-19 was work-related, unless:
There was objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
The evidence was reasonably available to the employer. Reasonably available evidence included information given to the employer by employees, as well as information that an employer learned regarding its employees’ health and safety in the ordinary course of managing its business and employees.
Under the new guidance, effective May 26, 2020, employers will be required to act as amateur epidemiologists and determine whether COVID-19 cases in the work force are work-related. Employers are required to record a COVID-19 case as an occupational illness if:
The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
The case is work-related as defined by 29 CFR § 1904.5; and
The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7. [If an employee misses days of work or receives medical treatment beyond first aid, this requirement is met.]
In determining whether a COVID-19 case is work-related, an employer is required to consider all “reasonably available evidence.” While admitting that this determination cannot be reduced to a “ready formula,” OSHA provided the following-guidance:
COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.
Certified Safety and Health Officers should give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee herself.
There is one small glimmer of hope for employers. OSHA gave a favorable burden of proof for making the work-relatedness determination and recording requirements: “If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.” Also, employers with 10 or fewer employees and certain employers in low hazard industries have no recording obligations.
OSHA requires employers to create and maintain records of occupational illnesses. But, typically employers are only required to report to OSHA instances that result in death, hospitalization or loss of an eye. The new guidance does not change those reporting requirements, but the recording requirement could be substantial for many employers.
I’m tall: 6’5″. My wife is short: 5’1″ (on a good day). As she likes to put it: “I’m short, but mighty!!” Thus, she should read this blog and be unsurprised that her stature does not give her any rights under the Americans with Disabilities Act. See Colton v. FEHRER Auto. N.A., LLC, No. 4:19-cv-653-CLM, 2020 WL 2132026 (N.D. Ala. May 5, 2020).
Nicole Colton is 4’6″ tall. She was assigned by a temporary work agency to FEHRER’s plant in Gadsden, Alabama. When Ms. Colton was assigned to the assembly line, her short stature limited her reach and her ability to perform the job. Her requests for reassignment to a different position in the plant were refused and she was terminated because she was “not a good fit.”
Ms. Colton sued for disability discrimination under the Americans with Disabilities Act and FEHRER moved to dismiss her complaint. United States District Court Judge Corey L. Maze found that her height did not meet the definition of a “disability.” Importantly, Judge Maze did notrule that all short people are barred from the benefits of the ADA. Instead, he focused on the ADA’s implementing regulations and found that only physical impairments involving “some type of disorder or pathology of the body” qualify for protection. Thus, Ms. Colton’s height was not a “disability,” but a physical “characteristic.”
Judge Maze also rejected Ms. Colton’s argument that she was “regarded as” disabled. To satisfy that legal requirement, she was required to show “that FEHRER perceived that Colton’s height resulted from a physiological disorder or condition, thereby rendering her disabled under the ADA.” But, Ms. Colton possessed no evidence to support such a showing.
Again, it is important to note that Judge Maze did not create a categorical rule denying all short people the protection of the ADA. There are undoubtedly numerous physiological disorders or conditions that can result in decreased height. But, people like my wife, who are just short because of genetics, will not receive protection.
Are employers required to provide paid leave to employees with child care issues during Summer break?
Under the Families First Coronavirus Response Act (“FFCRA”) employees are entitled to paid leave if their child’s school is closed because of COVID-19. The exact language of the regulation is:
The Employee is caring for his or her Son or Daughter whose School or Place of Care has been closed for a period of time, whether by order of a State or local official or authority or at the decision of the individual School or Place of Care, or the Child Care Provider of such Son or Daughter is unavailable, for reasons related to COVID-19 ….
29 C.F.R. § 826.20(a)(v)(emphasis added). Well, what happens during a school’s regularly-scheduled Summer Break?
Employers might be tempted to deny paid leave because schools are no longer closed “for reasons related to COVID-19.” I strongly recommend you do not take that approach. The exception for child care is more expansive than just closure of a school. Instead, employees are also entitled to paid leave if the child’s “Place of Care” or “Child Care Provider” is unavailable. The definitions of those terms are expansive.
The term “Place of Care” means a physical location in which care is provided for the Employee’s child while the Employee works for the Employer. The physical location does not have to be solely dedicated to such care. Examples include day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs.
29 C.F.R. § 826.10(a)(emphasis added).
So, if an employee would normally send their child somewhere for care during the Summer, and that place is closed because of COVID-19 concerns, they are still entitled to paid leave.
Plenty of employees also rely upon friends and family to provide child care during the Summer. Those friends and family fall within the definition of “Child Care Provider”:
The term “Child Care Provider” means a provider who receives compensation for providing child care services on a regular basis. The term includes a center-based child care provider, a group home child care provider, a family child care provider, or other provider of child care services for compensation that is licensed, regulated, or registered under State law …. Under the Families First Coronavirus Response Act (FFCRA), the eligible child care provider need not be compensated or licensed if he or she is a family member or friend, such as a neighbor, who regularly cares for the Employee’s child.
29 C.F.R. § 826.10(a)(emphasis added). So, if an employee would normally rely upon a family member or friend for child care during the Summer, but that person is unavailable because of COVID-19, the employee is still entitled to paid leave.
The best approach to resolving Summer Break issues is to have a discussion with your employee. How do you normally care for your child during the Summer? What is different this year from previous years? If the employee provides a COVID-19 related explanation for lack of child care, they are probably entitled to paid leave. In that instance, employers have obligations under the FFCRA to document the reasons for Summer leave.
Here is link to FFCRA regulations: FFCRA Regs. If you have further questions on child care and COVID-19 paid leave, contact your attorney.
Employers still have plenty of questions regarding their obligations to provide paid leave related to COVID-19.
By now, most employers know that Congress passed the Families First Coronavirus Response Act (“FFCRA”) which mandated paid leave for employees affected by COVID-19. In summary, the FFCRA contains two acts. First, the Emergency Family and Medical Leave Expansion Act (“EFMLA”) requires up to 12 weeks of leave for child care issues related to COVID-19. Second, the Emergency Paid Sick Leave Act (“EPSLA”) requires 80 hours of paid sick leave because of issues arising from a diagnosis/symptoms of COVID-19 or child care issues. Here’s a link to a post more-thoroughly discussing the EFMLA and EPSLA: EFMLA and EPSLA
In the days following passage, the United States Department of Labor (“DOL”) weighed-in with a set of Questions and Answers related to paid sick leave. Here’s a link to that guidance: DOL Q&A. Not to be outdone, the Internal Revenue Service also provided its own Questions and Answers: IRS Q&A.
Importantly, those Questions and Answers were not binding statements of the law. Paid leave required by the FFCRA became mandatory beginning on April 1, 2020. On that same day, DOL issued interim regulations and today placed those regulations into the Code of Federal Regulations (“C.F.R.”). Employers can now rely upon those regulations when making decisions related to paid leave. Here’s a link to the published regulations: Published Paid Leave Regs.
Here are 10 issues of importance in the regulations:
A “Child Care Provider” Includes Free Care by Family Members and Friends. Under the FFCRA, an employee is eligible for leave if “the child care provider of such son or daughter is unavailable” due to COVID-19 reasons. The FFCRA defined “child care provider” as “a provider who receives compensation for providing child care services on a regular basis ….” Some commentators believed that this definition prevented employees from receiving paid sick leave if they relied upon free child care from family members or friends. DOL dispensed with that argument by defining “child care provider” so that an “eligible child care provider need not be compensated or licensed if he or she is a family member or friend, such as a neighbor, who regularly cares for the Employee’s child.” 29 C.F.R. § 826.10
What is “telework?” The FFCRA makes clear that an employee is only entitled to paid leave if he/she is unable to work, or telework, because of qualifying reason. But, the FFCRA did not define “telework.” The regulations clarify that telework is “work the Employer permits or allows an Employee to perform while the Employee is at home or at a location other than the Employee’s normal workplace.” 29 C.F.R. § 826.10
What “symptoms” qualify for leave? One way for an employee to qualify for 80 hours of leave under the EPSLA is if they are “experiencing symptoms of COVID-19 and seeking medical diagnosis from a health care provider.” The regulations clarify than any one of four (4) symptoms suffice: (a) fever; (b) dry cough; (c) shortness of breath; or (d) any other COVID-19 symptoms identified by the U.S. Centers for Disease Control and Prevention. See 29 C.F.R. § 826.20(a)(4).
“Caring for an individual” is expansive. Another way for an employee to qualify for 80 hours of leave under the EPSLA is if they are “caring for an individual” who is subject to a quarantine order or directed to self-quarantine. The regulations provide an expansive definition of the “individuals” who may be cared for: (a) an employee’s immediate family member; (b) a person who regularly resides in the employee’s home; or, (c) a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person. See 29 C.F.R. § 826.20(a)(5).
“Caring for a son or daughter” is slightly restricted. Under both the EFMLA and EPSLA, an employee may receive leave if they are “caring for a son or daughter” whose school or child care provider is unavailable because of COVID-19. The regulations make clear that an employee is only entitled to that leave “only if no other suitable person is available to care for the Son or Daughter during the period of such leave.” 29 C.F.R. §§ 826.20(a)(8) and 826.20(b).
Taking paid leave does not affect FLSA overtime exemptions. As a general rule, the Fair Labor Standards Act (“FLSA”) allows employers to exempt salaried employees from overtime if they perform certain executive, administrative or professional duties. Another general rule of the FLSA requires that an exempt, salaried employee must be paid his/her entire week’s salary if he/she works any part of the work week. Many employers and commentators were worried that payment of sick leave under the FFCRA might affect FLSA exemptions. The regulations completely resolve those worries: “The taking of Paid Sick Leave or Expanded Family and Medical Leave shall not impact an Employee’s status or eligibility for any exemption from the requirements of” the FLSA. 29 C.F.R. § 826.20(c).
FMLA leave is limited to 12 weeks — paid or unpaid. The EFMLA expands the “regular” FMLA. The regular FMLA provides 12 weeks of unpaid leave to qualifying employees. Many employers wondered whether the EFMLA gave an additional 12 weeks. DOL answered that question with an emphatic: “No.” So, if an employee used 6 weeks of unpaid, “regular” FMLA earlier this year, they will only be entitled to 6 weeks of Emergency Family and Medical Leave. See 29 C.F.R. § 826.23.
The exemption for “health care providers” and “emergency responders” is broad. The FFCRA allows employers of “health care providers” and “emergency responders” to exempt those employees from paid leave. The regulations bring a wide-range of employees within those definitions. “Health care provider” includes “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution.” It also includes people who provide support services to such facilities. “Emergency responder” includes: military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose
work is necessary to maintain the operation of the facility.” See 29 C.F.R. § 826.25(c).
Small business may exempt themselves from paid leave. An employer with fewer than 50 employees can be exempt from the FFCRA’s requirements if an authorized officer of that employer determines and documents that one of three criteria exist: (a) paid leave would result in expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity; (b) the absence of the employee(s) requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized
skills, knowledge of the business, or responsibilities; or, (c) 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(s) requesting leave, and these labor or services are needed for the business to operate at a minimal capacity.
You must document reasons for paid leave. Both the IRS and the DOL have mandated documentation to support any paid leave given to an employee. Every employee’s request must be supported by documentation containing: (a) the employees name; (b) the dates for which leave is requested; (c) the qualifying reason for the leave; and, (d) an oral or written statement that the employee is unable to work because of the qualifying reason. Additionally, if an employee, or somebody they care for, has been advised by a health-care provider to self-quarantine, the employee must provide the name of the health care provider. If a quarantine/isolation order has been issued, the employee must provide the name of the government entity issuing the order. For child care, the employee must also provide:
The name of the son or daughter cared for;
The name of the school, place of care, or child care provider that has closed or is unavailable; and,
A representation that no other suitable person will be caring for the son or daughter during the period for which leave is taken.
There are many more issues addressed by the regulations. If you have any particular questions about the FFCRA, you should consult with an employment attorney.
Governor Ivey’s so-called “shelter in place” order will have little impact on Alabama employers.
In recent days, Alabama Governor Kay Ivey has been the subject of increasing pressure to issue a “shelter in place” order — requiring Alabamians to stay home because of COVID-19. Today, she issued an order that claims to mandate “shelter in place.” Yet, the exceptions within that order are so enormous, they will have very little impact on Alabama employers. I also believe the order will do very little to change the behavior of ordinary people. Here’s a link to the order: Shelter In Place Order
The order beings quite convincingly: “Effective Saturday, April 4, 2020, at 5:00 P.M., every person is ordered to stay at his or her place of residence except as necessary to perform any of the following ‘essential activities’:” The key words here are “except” and “essential activities.” The order goes on to label almost every activity in Alabama as “essential,” including:
Obtaining necessary supplies — defined as anything necessary for the “routine operation of a home or residence.”
Providing necessary services — Anything necessary to preserve a person or pet’s health and safety.
Attending religious services — so long as you can maintain a consistent six-foot distance.
Taking care of others — defined to include taking care of a “pet in another household.”
To work. Obviously, this is the important one for this blog. People are allowed to leave home to perform work at “essential businesses and operations.” As detailed below, virtually all businesses are considered “essential.”
To engage in outdoor activity. After all, it’s Turkey Season.
To seek shelter.
To travel as required by law
To see family members. Defined as “to visit the residence of other persons who are related to him or her.”
OK. People can report to work at “essential businesses and operations.” Well, what are those? You name it, and you probably work for an “essential” business. Each of the following categories of business has laundry-list of specific occupations called-out in the order. If you have any question, check the order — you’re probably working for an “essential” business.
Government operations. Basically, any government agency and “workers and vendors that support” those agencies.
Health-care providers and caregivers. Again, this category is as broad as possible, including “medical practices” and “other ancillary healthcare services.”
Infrastructure operations. Utilities, wireless communication, dams, airports — those make sense. But, don’t forget car sales, Uber and Lyft drivers and RV Parks.
Manufacturing facilities. Any company that produces any “products used by any other Essential Business or Operation.”
Agricultural operations and farms.
Essential retailers. Almost anybody but clothes stores. Warehouse clubs, liquor stores, convenience stores, guns stores and boat supply and repair stores are essential.
Restaurants and bars. This is the only category with absolutely no specification.
Essential personal services. This one is a little vague. It includes home repair, warehouses, animal shelters, laundromats, dry cleaners and “providers of business services.”
Financial services. Banks and anybody else that provides “services related to financial markers” with a special shout out to “payday lenders.”
Professional services. If you’re reading this blog, you know lawyers are essential. So are accountants, insurance services and real estate services.
Providers of basic necessities to economically disadvantaged populations.
Construction and construction-related services. Also broad, to include exterminators, janitorial services, painting, movers and “other related construction firms and professionals providing essential infrastructure.”
Essential public services. This is any service “necessary to maintain the safety, sanitation and essential operations of residences and essential businesses and essential operations ….”
Military or defense operations. My government contracting clients in Huntsville are essential. This includes any companies or subcontractors supporting the Department of Defense.
Essential services or product providers. This includes “any vendors that provide services or products.”
Religious entities.
Federally-designated critical infrastructure. Just in case Alabama’s list isn’t comprehensive enough, Governor Ivey bootstrapped everything the federal government deems “essential.” Here’s a link to that list: “Critical Infrastructure Workers”
Other state-designated essential businesses and operations. Any business deemed essential by the Alabama Department of Public Health or the Alabama Emergency Management Agency.
Support operations for essential business and operations. This is the catch-all. It covers any businesses that are “employees, contractors, agents, suppliers, or vendors” of another essential business or operation.
Just in case law enforcement officials stop an employee traveling to or from an essential business, this order allows businesses to supply workers with “credentials … verifying their status as an employee of an essential business or operation.” I have drafted these credentials for several of my clients with offices in other states that are also subject to “shelter in place” orders.
Essential business are supposed to “take all reasonable steps” for employees and customers to maintain a consistent six-foot distance and to avoid gatherings of 10 or more people.
The only other big change in this “shelter in place” order involves “essential retailers.” They are only allowed to permit entry of customers so that occupancy of their buildings is limited to “50 percent of the normal occupancy load as determined by the fire marshal.” Their employees must not “knowingly allow” patrons to congregate within six feet of each other. Finally, they must take “reasonable steps to comply” with guidelines on sanitation from the Centers for Disease Control and the Alabama Department of Public Health.
I truly hope that this “shelter in place” order has some impact on slowing the spread of COVID-19. In my opinion, however, the exceptions in the order are so broad, that they impose virtually no further restrictions from the “social distancing” restrictions that were previously imposed on Alabamians. Here’s a link to my first blog post discussing Governor Ivey’s first “social distancing” order: Social Distancing Order
