Time to Revisit Your Contact Tracing Protocols after CDC Redefines Close Contact as 15-Minutes of Cumulative Exposure

Contributed by Michael J. Faley, October 22, 2020

15 Minutes Clock Icon. Vector Fifteen Minute Symbol Isolated on White Background.

The US Centers for Disease Control and Prevention (CDC) has revised its guidelines to define a close contact with a COVID-19 carrier to include several brief exposures. The CDC now defines “close contact” with an infected person as “[s]omeone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.”  The change now means that the 15-minutes of exposure time includes shorter interactions added together over a 24-hour period, including, for example, three 5-minute exposures for a total of 15 minutes.

The CDC readily acknowledges that it is difficult to precisely define what really constitutes “close contact,” but advises that 15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation. Factors to think about when deciding whether close contact has occurred include: 

  • The proximity of the individuals (closer distance likely increases exposure risk);
  • The duration of exposure (longer exposure time likely increases exposure risk);
  • Whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding);
  • If the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting); and
  • Other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors).

The CDC further advises that “[b]ecause the general public has not received training on proper selection and use of respiratory PPE, such as an N95, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE.  At this time, differential determination of close contact for those using fabric face coverings is not recommended.”

The new guidelines seemingly add another layer of complexity to the contact tracing process. Nonetheless, employers should take a look at their COVID-19 policies and contact tracing protocols and incorporate the CDC’s revised definition of close contact. Employers should also be sure to check their local and state guidance.

NEW CALIFORNIA EEO PAY REPORTING LAW TO GO INTO EFFECT MARCH 31, 2021

Contributed by John R. Hayes, October 20, 2020

On September 30, 2020, California Governor Gavin Newsom signed into law Senate Bill 973.  This new pay reporting law applies to private employers in California: (a) with 100 or more employees; and (b) that are required to file an annual Employer Information Report (EEO-1) pursuant to federal law. Beginning March 31, 2021, and on an annual basis, covered employers will have to provide California’s Department of Fair Employment and Housing (DFEH) with pay data by specified job categories and by race, ethnicity and sex. We previously reported on this anticipated legislation, amongst other employment law developments in California, in a prior blog post.

This legislation was enacted in response to the decision by the Equal Employment Opportunity Commission (EEOC) to stop pay data collection, also known as EEO-1 Component 2 reporting, in September 2019.  In the final bill, the California Legislature explained the underlying public policy:

(a) Despite significant progress made in California in recent years to strengthen California’s equal pay laws, the gender pay gap persists, resulting in billions of dollars in lost wages for women each year in California.

(b) Pay discrimination is not just a women’s issue, but also harms families and the state’s economy.  In California, in 2016, women working full time, year-round made a median 88 cents to every dollar earned by men and, for women of color, that gap is far worse.

(c) Although there are legitimate and lawful reasons for paying some employees more than others, pay discrimination continues to exist, is often “hidden from sight,” and can be the result of unconscious biases or historic inequities.

The California law is modeled after the discontinued EEO-1 Component 2 reporting requirement. Specifically, the annual report to the DFEH must include the number of employees—and the total hours they worked—by race, ethnicity, and sex in each of the job categories in the federal EEO-1 report:

(A) Executive or senior level officials and managers;

(B) First or mid-level officials and managers;

(C) Professionals;

(D) Technicians;

(E) Sales workers;

(F) Administrative support workers;

(G) Craft workers;

(H) Operatives;

(I) Laborers and helpers; and

(J) Service workers.

“Employee” as defined in the bill means an individual on an employer’s payroll, including a part-time individual, whom the employer is required to include in an EEO-1 Report, for whom the employer is required to withhold federal social security taxes from that individual’s wages, and whose annual earnings fall within each of the 12 pay bands used by the U.S. Bureau of Labor Statistics in the Occupational Employment Statistics Survey (from $19,239 and under to $208,000 and over).

Employers with multiple establishments must submit a report for each establishment and a consolidated report that includes all employees.  It should also be noted that employers have the option to provide clarifying remarks concerning the information in the report, should they choose to do so.

Some significant questions remain; however, including what will the reporting form look like, how many employees an employer must have in California to be covered, and whether an employer must report on employees who only worked in California for a short time.  Moreover, since the data requested will not take into account both common and organization-specific variables that explain pay differentials (e.g., time with company, education, training, experience, merit, etc.), there is concern among employers that this will lead to increased scrutiny and investigations based on false claims of pay inequities.

Thus, employers with any number of employees in California should begin to examine their pay data, compensation philosophies, and current pay structures to determine if legitimate, non-discriminatory business reasons for any discrepancies exist—or to determine if remedial measures are warranted—prior to the first reporting deadline of March 31, 2021.  Although this legislation is specific to California employers, it also is a spur to action to employers outside that state to proactively review and understand how their pay data would appear should they be investigated for pay disparity claims, or should other states follow California and implement similar legislation.  

Employee Voting Rights: Are Employers Required to Give Time Off to Vote?

Contributed by Suzannah Wilson Overholt, October 15, 2020

Stickers to indicate voting

With the General Election on November 3rd rapidly approaching, registered voters are exploring various options for casting their ballots, be it through mail or in person early or on Election Day (November 3rd). One critical factor that may drive an individual’s voting plan is their work schedule, which raises the question of whether employers are required to give their employees time off to vote.

The answer to that question depends on the state where you work. A summary of the requirements from around the Midwest is below:

Illinois requires employers to give employees two paid hours off to vote. If the employee’s working hours begin less than two hours after opening of the polls and end less than two hours before closing of the polls, the employer must provide the employee a two hour paid absence during working hours. However, the employer may decide when the hours are taken. Employers may require that employees give at least one day’s advance notice of their intent to take the time off and to request paid leave.  No proof of voting is required.

Iowa requires employers to give employees as much time to vote as will add up to three hours when combined with non-work time.  However, time off to vote is not required if the employee has three consecutive non-work hours available while the polls are open.  The time off is paid but no proof of voting is required.  Employees must give their employers written notice of their intent to take voting leave before the election.  The employer may decide when the hours are taken.

Missouri requires employers to give employees three paid hours off to vote.  However, this leave is not required if the employee has three consecutive non-work hours available while the polls are open.  Employees seeking to take leave to vote must give notice prior to Election Day and must actually vote to be paid.  The employer may decide when the hours are taken.

Wisconsin also requires employers to allow employees up to three consecutive hours off to vote.  The time is unpaid and employees must notify their employers of their intent to take the leave before Election Day.  The employer may decide when the hours are taken.  No proof of voting is required. 

Kentucky requires employers to give employees a minimum of four hours of time off to vote.  The time is unpaid and employees must give one day’s advance notice of their intent to take the time off.  An employee who takes the time off but does not vote is subject to disciplinary action.  The employer may decide when the hours are taken.

Ohio requires employers to give employees a reasonable amount of time off to vote.  The time is only paid for salaried employees.  No advance notice or proof of voting is required.  An employer cannot refuse to allow an employee to serve as an election official on Election Day.

Neither Indiana nor Michigan requires employers to allow employees time off to vote. 

We encourage all registered voters to make a plan and cast their ballot.

BIPA: The Ongoing Threat of Employee Class Actions and Recent Developments

Contributed by Carlos Arévalo and guest author Molly Arranz, October 9, 2020

Biometric Identification Personality, Scanning Modern Access Control, Technology Recognition Authentication System Concept – Illustration Vector

Even in the pandemic, the (high) number of class action filings based upon the Illinois Biometric Privacy Act (BIPA) remains steady. And, against that backdrop come two recent decisions that may impact how employers need to shift their defense strategies.

First, in McDonald v. Symphony Bronzeville Park LLC, the Illinois Court of Appeals ruled that the state Workers’ Compensation Act (WCA) and its exclusivity provisions do not bar claims for statutory damages under BIPA. The court distinguished the two, noting that while the WCA provides remedies to workers that have sustained an actual injury, BIPA provides statutory, liquidated damages to employees who allege privacy right violations even when there is no injury. This outcome should come as no surprise given past rulings on what an employee or consumer needs to show to pursue a BIPA claim. Thus, as it relates to BIPA claims, the WCA exclusivity defense is no longer viable – or at least for the time being, since this case will likely be appealed to the Illinois Supreme Court.

In a second decision, Williams v. Jackson Park SLF, LLC, the Northern District of Illinois held that union workers under a collective bargaining agreement are preempted from pursuing a BIPA cause of action in federal court. The overall success of this argument, though, may be limited as the court is allowing the plaintiff to amend its complaint, meaning the case may still be litigated by non-union class members. It remains to be seen what defenses to the merits—and perhaps, more importantly, to class certification—can be advanced with an amended complaint and amended class definition.

On balance: it has been 12 years since BIPA was enacted, but there are still so many questions that are being battled in court as employers and employees continue to navigate this biometric privacy law. One thing is for certain: BIPA packs a punch with eye-popping statutory damages and monetary awards that can lead to anywhere from $1,000 to $5,000 per violation plus attorneys’ fees. Moreover, considering that an alleged violation is enough to bring a suit, BIPA is a class action dream – bearing in mind if an employer is collecting biometric data on one individual, it is collecting it on many individuals.

To avoid finding yourself facing a BIPA class action, the best thing you can do as an employer is ensure basic compliance in the first place:

  • Determine what biometric information you are collecting. Under BIPA, biometric data is sensitive information that is biologically unique—such as iris scans, fingerprints, voiceprints, and face geometry. Both of the recent lawsuits were brought by employees using finger prints or hand prints to clock in and out of work. While these may now seem like obvious identifiers, remember that some identifiers can be captured simply through voice or video recording. That being said, while advanced technology can enhance the workplace experience, when integrating new systems think through what information your company may be collecting in order to determine any necessary disclosures.
  • Evaluate what disclosures you currently have in place. To comply with BIPA, companies must provide written notice to its users disclaiming what biometric information will be collected, stored, or used, as well as an explanation of the purpose of its collection. Additionally, prior to collection it is best to obtain express written authorization from employees to collect and store their biometric information.
  • Create a public facing policy that is easily accessible for employees. Biometric data has become a hot button issue across the country. Since biometric information is uniquely sensitive and cannot be changed, there is constant, growing concern on how information is being collected, stored, and destroyed. Creating a company policy that is available to employees is not only required, but helps ease some concern. Consider posting the policy in public spaces like breakrooms, or perhaps in areas where the biometric data is being used. For example, if your employees clock in via fingerprints, then perhaps it is worth posting a copy of the policy near the time clock.
  • Stay alert to both recent court decisions and pending regulations. BIPA has caused quite a stir and will continue to be challenged in courts as employers and employees alike learn what can and cannot be brought under BIPA. While staying up to date on recent court decisions is always beneficial, it is also important to be alert to any regulatory changes so that your business can remain in compliance. Recently, the National Biometric Information Act of 2020 was introduced in the U.S. Senate. If passed, this would be the first comprehensive federal policy of its kind concerning biometric data. Since this bill has only been introduced you are not subject to any official requirements as of yet. However, the more you are aware of upcoming regulations, the better prepared your company will be with efficiently and effectively complying.

Want to learn more about BIPA and how you can avoid the threat of a class action? Join Molly Arranz and Carlos Arévalo for a complimentary webcast on October 29.  

Your CA Fast Five – Highlights on Five Major Changes to California’s Employment Laws that You Need to Know Right Now

Contributed by Carlos Arévalo and Michael Faley, October 5, 2020

Wooden judge gavel with USA state flag on sound block – California

While many California employers are challenged on multiple fronts at the moment from the ongoing pandemic and wildfires, they nonetheless need to be mindful of new employment law measures recently signed by Gov. Gavin Newsom. The major changes include stronger family leave protections, new COVID-19-related reporting requirements and rules helping essential workers get Workers’ Compensation, tighter gig-work rules, and data collection requirements to help track race and gender pay gaps. 

1.  New Family Leave Law

On September 17, 2020, Gov. Newsom signed a bill that gives California employees at smaller businesses greater family and medical leave protections.  According to Gov. Newsom, “[t]he COVID-19 pandemic has only further revealed the need for a family leave policy that truly serves families and workers, especially those who keep our economy running.”  

Under Senate Bill 1383, employers with five or more employees must offer 12 weeks of unpaid time off for family or medical leave as of January 1, 2021. The bill also mandates that the companies must continue employer-paid health benefits for each employee who takes leave.  The reasons for leave include time to care for a newborn, a sick loved one or themselves, and now expands leave to include caring for grandparents, grandchildren, and siblings in addition to the current requirement covering an employee’s parent, child, and spouse or domestic partner. California law previously only required, for example, companies with 50 or more employees to provide 12 weeks medical leave. 

The law further calls for employers to grant spouses who work for the same company with 12 weeks of family leave each. Employers will not be able to compel parents to split their leave.

2. COVID-19 Reporting Requirements

On January 1, 2021, California employers’ COVID-19 reporting requirements will change.  Under Assembly Bill 685, employers will need to notify workers that they may have been exposed to COVID-19 within one business day if an employee tests positive.  The law requires written notice to all employees and subcontracted employees who were on the premises at the same worksite within the “infectious period.”  The notice must contain information identifying the COVID-19 related benefits that the employee(s) may receive, and the company’s disinfection protocols and safety plan to stop any further exposures.   

Under the new measure, companies will be further required to notify their local public health department if the number of known COVID-19 cases qualifies as a “COVID-19 outbreak,” as defined by the California State Department of Public Health.  Companies will have 48 hours to send notice to the public health department.  The law specifically empowers California’s Division of Occupational Safety and Health (Cal/OSHA) to shut down a worksite if the virus poses an “imminent hazard.”

Employers should strongly consider developing and implementing a written COVID-19 action plan to comprehensively address prevention, outbreak containment and employee rights and obligations.

3. Workers’ Compensation Changes for Essential Workers

Gov. Newsom also signed into law Senate Bill 1159 addressing workers’ compensation for certain essential workers.  The Bill takes effect immediately and remains in place through January 1, 2023 and creates a “disputable presumption” that illness or death related to COVID-19 arose out of and in the course of employment and is compensable, under certain circumstances. The Bill also requires an employee to exhaust paid sick leave benefits and meet specified certification requirements before receiving any temporary disability benefits or, for police officers, firefighters, and other specified employees, a leave of absence. The Bill would also make a claim relating to a COVID-19 illness presumptively compensable after 30 days or 45 days, rather than 90 days. Until January 1, 2023, the bill would allow for a presumption of injury for all employees whose fellow employees at their place of employment experience specified levels of positive testing, and whose employer has 5 or more employees.

The Bill does state that the “place of employment” does not include an employee’s residence if they are working at home.

The compensation to be awarded for injury pursuant to this Bill includes full hospital, surgical, medical treatment, disability indemnity, and death benefits.

4. Freelancer Exemptions Expansion

As many of our readers may recall, effective January 1, 2020, AB 5 codified what has been known as the “ABC” test, which is commonly used to determine whether a worker is an employee as opposed to an independent contractor.  Specifically, under AB 5, a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that all of the following conditions are satisfied:

  1. The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.
  2. The person performs work that is outside the usual course of the hiring entity’s business.
  3. The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

After the enactment of AB 5, Uber filed a federal lawsuit challenging the law’s constitutionality. Uber, Lyft and others also championed Proposition 22, a ballot initiative in the November 2020 election to define app-based transportation (rideshare) and delivery drivers as independent contractors. 

In response to AB 5, Gov. Newsom signed into law AB 2257, a bill intended to ease some of AB 5’s restrictions by creating a number of exemptions that allow freelance writers, photographers, translators and musicians to continue working as independent contractors, rather than employees.  For instance, AB 2257 eliminates a 35-submission cap for freelance writers and photographers – current rules dictated that California-based freelancers who contribute more than 35 submissions to an outlet per year must be reclassified as an employee.  In addition, translators, appraisers, and registered foresters have been added to the “professional services” exemption. The “professional services” exemption currently covers graphic designers, travel agents and marketers, among others.  Finally, AB 2257 allows music industry workers, including recording artists, songwriters, producers, promoters and many others, to continue working as freelancers.  AB 2257 went into effect as of its passage.

5. Collecting Pay Gap Data

Senate Bill 973 requires that on or before March 31, 2021, and on or before March 31 each year thereafter, a private employer that has 100 or more employees must submit a pay data report to the Department of Fair Employment and Housing (DFEH) that contains specified wage information. This Bill requires that the information is to be made available in a prescribed format. DFEH then has to maintain the pay data reports for a minimum of 10 years, and it is unlawful for any officer or employee of the DFEH to make public in any manner any individually identifiable information obtained from the report prior to the institution of certain investigation or enforcement proceedings. The Bill also requires the Employment Development Department to provide DFEH, upon its request, the names and addresses of all businesses with 100 or more employees.

The pay data report must include information about the number of employees by race, ethnicity, and sex who are in executive or senior level, professional, technician, and administrative positions.  Data should also include the same information for sales, craft and services workers as well as for laborers and helpers.

If an employer submits a copy of its Employer Information Report, otherwise known as an EEO-1 Report, containing the same or substantially similar pay data information required under the Bill, then the employer will be in compliance with the Bill.

Failure to submit the required report may result in the DFEH seeking an order requiring the employer to comply with these requirements, and pay the costs associated with seeking such an order.

In summary, California employers can be proactive and prepare for these amendments by (1) reviewing and updating employee classifications as well as existing policies and practices to ensure current compliance, (2) collecting the necessary information, if the employer does not already have it, to address the new reporting requirements, and (3) implementing necessary processes to address these developments. For our part, we will continue to monitor and communicate further developments as they occur.

Navigating the U.S. Immigration Labyrinth Right Now

Contributed by Jacqueline Lentini McCullough, September 30, 2020

The U.S. immigration system has always been something of an obstacle course. Recent developments have made it more like an intricate labyrinth with detours, hidden delays, and dead ends if you are not careful. Here are some recent developments and how they are affecting visa compliance and processing.

USCIS Budget Crisis

USCIS is a fee-driven agency. Fees pay 96% of its operating costs. It claims the coronavirus has caused a devastating budget shortfall. For four months they threatened to furlough 13,000 of their 20,000 employees. Ironically, a congressional inquiry showed USCIS had a surplus for the fiscal year.

At the end of August, Joseph Edlow, Deputy Director for policy at USCIS, said the agency would avoid the furlough, but institute other cost-cutting measures. As a result, backlogs and wait times would increase.

While things did slow down for a couple of months at the beginning of the pandemic, the number of cases has rebounded to close to pre-pandemic levels.

Moreover, USCIS was set to impose a fee rate hike effective October 2nd that it began planning last November. On average the hike would have been a 21% increase. Just yesterday, September 29th, the new fee rule was halted entirely by the United States District Court for the Northern District of California’s Judge White.

COVID-Related Country Restrictions Extended Through December 2020

Health-related restrictions requiring American citizens and legal permanent residents who have traveled to certain countries to re-enter the U.S. through one of 15 specific airports have been extended through December 31, 2020. These countries include China, Iran, Ireland, the U.K., Brazil and the Schengen area, which covers 26 European countries.

A presidential proclamation that bans residents of those countries from entering the U.S. has also been extended through December 31, 2020. The president made this proclamation on the assumption that these people would compete for jobs that Americans would take given the economic strife in the country.

The ban includes a national interest waiver which makes exceptions for medical professionals supporting the effort to combat COVID-19, spouses of U.S. citizens, lawful permanent residents, and a few other select groups.

Creative Solutions Help and Change Frequently

Among the creative solutions is alternate travel routes to establish 14 days presence in a non-banned location. Recently these diversions have included Croatia, Serbia and the Bahamas.

The Bahamas has been so flooded with people that on September 1 they instituted new travel requirements that include proof of a negative COVID test within 5 days of arrival, an approved Bahamas health visa and mandatory “vacation in place” orders for up to the first 14 days there.

Mexico is still an alternate route option for now, but their U.S. embassy is one of the busiest in the world. With a decreased staff, travelers who qualify for exceptions find appointments take longer to get or are sometimes cancelled.

It is important to monitor daily which countries allow quarantine and can act as a U.S. gateway. With COVID-19 risk driving these restrictions, it is hard to know what the future holds.

It is likely that some of our current restrictions – at least the health-related ones – may be extended into 2021 as well. Foreign nationals may have to delay further trips to see family or to start jobs in the U.S.

U.S. House of Representatives Passes Pregnant Workers Fairness Act

Contributed by Michael J. Faley, September 29, 2020

On September 17, 2020, the House voted 329-73 to pass the Pregnant Workers Fairness Act.  The bill seeks to clarify the law and require employers to make reasonable accommodations for employees impacted by a known pregnancy-related limitation.  Like the Americans with Disabilities Act, the bill calls for an interactive process between employers and pregnant workers to develop proper reasonable accommodations. The bill’s report states that such accommodations could possibly include, for example, providing seating, water, closer parking, properly sized uniforms and safety apparel, light duty, and extra break time to use the bathroom, eat and rest.

The bill comes as the number of pregnancy discrimination complaints has dramatically increased over the last two decades and many employers have faced confusion and uncertainty due to recent court rulings and inconsistent state and local laws. Most notably, in 2015, the U.S. Supreme Court held in Young v. UPS that plaintiffs who bring claims under the federal Pregnancy Discrimination Act can claim damages if they were denied accommodations that their employer granted to other workers. Since then, several major companies, including Walmart, Amazon, and Google among them, have contended with expensive pregnancy discrimination lawsuits from their employees and the negative press that comes with it. At the same time, workers’ rights groups have never been fully comfortable with the outcome of the Young decision as many argue that it imposes an unduly high burden upon an employee to prove her case.  

The Pregnant Workers Fairness Act is now being touted as a significant compromise between businesses and their workers. According to the U.S. Chamber of Commerce, who has voiced its support, the “bill would provide pregnant employees with important workplace protections while also making sure employers have clear and flexible options to ensure pregnant employees can remain at work for as long as they wish to do so.” 

The U.S. Senate will probably wait until after the election to take up the bill.

DOL Issues Updated FFCRA Regulations

Contributed by Peter Hansen, September 14, 2020

The U.S. Department of Labor announced revised regulations interpreting the Families First Coronavirus Response Act (FFCRA) in response to a New York federal court decision declaring some FFCRA regulations invalid.  The revised regulations become effective September 16, 2020, and include several changes and clarifications that employers should be aware of:

The Health Care Provider Exception.  The DOL limited the “health care provider” exception (which excluded certain employees from FFCRA eligibility) to employees who are “capable of providing health care services,” including “diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.”  The DOL also provided a non-exhaustive list of employees who are not health care providers:  “information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers.”  Accordingly, employers in the health care industry must now undertake a position-specific analysis to determine which employees meet the new definition of “health care provider.”

Requiring Documentation Before FFCRA Leave. Employers cannot require the employee to submit documentation prior to the commencement of FFCRA leave.  Employers can, however, continue to require employees to provide documentation supporting their need for FFCRA “as soon as practicable.”

The DOL also doubled down on two of the four significant regulations the New York federal court invalidated:

Work Availability Requirement. FFCRA leave continues to be available only if the employer has work available for the employee to perform. So, if the employer has no work for the employee (due to a furlough, business closure, etc.), then the employee is not entitled to FFCRA leave even if they would otherwise qualify. 

Intermittent FFCRA Leave Only with Employer’s Consent.  Intermittent use of FFCRA leave continues to be available only if the employer allows it – however, the DOL clarified that the “employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis.” Put another way, “[f]or the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.”

The revised regulations include additional rationale for retaining the “work availability” and “employer consent for intermittent leave” requirements, but another lawsuit challenging them is certainly possible and perhaps even likely.  In the meantime, employers should consult with employment counsel on any request for FFCRA leave, especially before denying a request based upon the “health care provider” exception or lack of work available to the employee.

DOL Clarifies FFCRA Child Care Leave – More FFCRA Guidance Expected

Contributed by Suzanne Newcomb, September 10, 2020

e-learning concept. schooldesk and chalkboard on the laptop keyboard. 3d

The Families First Coronavirus Relief Act or “FFCRA” requires employers with less than 500 employees to provide paid leave to employees unable to work (or telework) for various COVID-related reasons. Particularly relevant as many schools open either virtually or with combination of in person and virtual instruction is FFCRA’s mandate for paid leave to care for children not in school or daycare due to COVID-19.

On August 27, 2020 the DOL added FFCRA FAQs 98-100 clarifying that:

  • FFCRA is not triggered if the child’s school is open for in-person instruction but the family chooses an e-learning option unless the e-learning option was chosen because the child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine. See FAQ #99
  • A hybrid in-person / e-learning schedule triggers FFCRA for the child’s assigned e-learning days (those days when the school is effectively closed to that child although open to others) if the employee is needed to care for the child and no other suitable person available to do so. FAQ #98
  • The fact that the district is monitoring the local situation and may reopen to in-person instruction does not impact FFCRA coverage. FFCRA is triggered when the employee is needed to provide care because the school is not open to the child for in-person learning. FAQ #100

While helpful, the FAQs leave some questions unanswered. What if school is open only half days? What if school is open but the child must quarantine due to possible exposure? If the child is not experiencing symptoms and therefore has not sought a diagnosis does the parent’s absence trigger FFCRA? Absent further guidance to the contrary, consider these absences as FFCRA-covered anytime the school is effectively closed to that child.  

In other FFCRA news, back on August 5, 2020 we reported that a U.S. District Court for the Southern District of New York struck down portions of the DOL’s final rule implementing the FFCRA. The court invalidated the work availability requirement, much of the health care provider exception, the employer consent rule for intermittent leave, and employers’ right to require documentation in advance of leave. No word yet on whether the DOL will appeal the ruling (because a U.S. government agency is a litigant, the parties have 60 days to appeal rather than the normal 30 days). However, on September 3, 2020, the DOL sent a revised final rule on the FFCRA to the White House for review. Presumably revisions were made in response to this ruling.  Absent further guidance to the contrary, consider absences as FFCRA-covered anytime employees must care for their child because the school is effectively closed to that child. 

How to Combat Negative Publicity During COVID-19

Contributed by guest author Ryan Jacobson, September 9, 2020

Feedback in form of emotions, smileys, emoji. User experience. Customer feedback. Review of consumer.

With the prevalence of online consumer reviews and merciless labor organizations, companies and their executives are vulnerable to attack for good reason, bad reason or no reason at all. Managing the expectations of your consumers, and of your workforce, is an important place to start. Executives who identify the problem and work diligently to arrive at viable solutions will gain a head start toward preserving the status quo. Media coverage will no doubt accelerate the harm; it is never too late to challenge the story line with a well-crafted statement from the company president or outside counsel. Companies should be prepared to act swiftly and trust their network of advisors to preserve the reputation it took them decades to build.

To illustrate, a company who suffers the loss of an employee to COVID-19 may have to refute unsupported allegations that the victim was infected on the job and counter fears that other workers were exposed. That may lead to the assumption that the company is unwilling to invest in personal protective equipment, or it was otherwise lax in its sanitization procedures – all of which may be patently false. Any related news coverage may likewise impact the company’s image with its customers.

The best way to combat this unexpected publicity is to tackle the problem head-on. Make it clear that the safety and health of your employees at work is a top priority. Instead of unhinging each blade of the rumor mill, explain that fear leads to assumptions, and those as­sumptions interfere with your ability to message the rigorous safety measures the organization has employed to keep its workforce and their families safe.

Explain that these are unprecedented times. That you are doing your best to research and comply with the guidelines put out by local, state and federal agencies considered experts in the field. Be specific and stand firmly behind the authorities you have relied upon, and the steps you have taken to rectify the problem. Alert those concerned that you are routinely monitoring the situation and staying abreast of any changes in the law or recommended best practices. Do not speak generically of your plan; rather, draft a comprehensive, safety protocol with a cover letter to your workforce summarizing the key measures undertaken. Consider providing to the probing reporter a copy of the protocol to demonstrate his source spared some of the key details. It will also reinforce that your organization had a plan in place before the story broke.

Ultimately, everyone wants to be ‘heard,’ which means repeating the concern and explaining the steps the business has taken to reconcile the perceived problem. Debating each false accusation lets the accuser control the narrative. Clear up any material misunderstanding but focus your response (or press release) on the efforts it has (or will) undertake to correct the problem. Use this opportunity to educate the misinformed and instill confidence in the detractors that you have the situation under control.