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Governor Abbott Announces Plan to “Reopen Texas”

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Written by Haley Paul
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COVID-19 EMPLOYER UPDATE

UPDATED April 17, 2020

In a press conference this afternoon, Governor Greg Abbott announced that he has signed three Executive Orders outlining his plan to “reopen Texas,” one of which includes the formation of a Strike Force to Open Texas to monitor and develop the “reopening” strategy. The Strike Force will bring together nationally recognized medical experts with public and private sector leaders who will advise the Governor on safely and strategically reopening business in the State of Texas. A copy of this Executive Order can be found here: Strike Force to Open Texas.

Governor Abbott also announced a plan for “Retail to Go” through a second Executive Order. In particular, “[s]tarting at 12:01 a.m. on Friday, April 24, 2020, retail services that are not ‘essential services,’ but that may be provided through pickup, delivery by mail, or delivery to the customer’s doorstep in strict compliance with the terms required by DSHS” may resume operations as outlined in the Executive Order. This Order also included the following directive that schools will remain closed through the end of the 2019-2020 school year:

In accordance with the Guidelines from the President and the CDC, schools shall remain temporarily closed to in-person classroom attendance by students and shall not recommence before the end of the 2019-2020 school year. Public education teachers and staff are encouraged to continue to work remotely from home if possible, but may return to schools to conduct remote video instruction, as well as perform administrative duties, under the strict terms required by the Texas Education Agency. Private schools and institutions of higher education should establish similar terms to allow teachers and staff to return to schools to conduct remote video instruction and perform administrative duties when it is not possible to do so remotely from home.

A copy of this Executive Order can be founder here: Strategic Reopening of Select Services.
The Governor issued a third Executive Order concerning hospital capacity and personal protective equipment (PPE) needed for the COVID-19 response. A copy of this final Executive Order can be found here: Hospital Capacity During COVID-19.
During the Press Conference, Governor Abbott also announced that state parks will reopen on Monday, April 20, 2020. He advised that face masks must be worn and that individuals must continue to observe social distancing guidelines (of a six-foot radius) and prohibited the gathering of groups larger than five.
Notably, Governor Abbott discussed that employees should not be “coerced into returning to work” and advised that employees should feel safe in returning to work. He encouraged employers to implement the “very best strategies” to reduce the transmission of COVID-19. The Texas Department of State Health Services has issued guidance to assist employers on preparing to return to work and it can be located here: https://www.dshs.texas.gov/coronavirus/.
In addition, if your business is preparing to return to work, please review our Guidance on Returning to the Workplace in the Face of COVID-19 published earlier this week.

These materials are made available by Stibbs & Co., P.C. for informational purposes only, do not constitute legal or tax advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Stibbs & Co., P.C. The facts and results of each case will vary, and no particular result can be guaranteed. The facts and results of each case will vary, and no particular result can be guaranteed. Employers should consult their tax advisors concerning the application of tax laws to their particular situation.

Employers are also encouraged to seek legal counsel prior to taking actions to avoid violations of federal or state employment laws including, but not limited to, the Family Medical Leave Act and its expansion under the Families First Coronavirus Response Act, the Fair Labor Standards Act, the Texas Payday Law, Texas small employer health insurance laws, new hire reporting laws, the Texas Commission on Human Rights Act, various EEO laws covered by Title VII of the Civil Rights Act of 1964, Occupational Safety and Health Administration laws, the Immigration Reform and Control Act, EEO-1 reporting requirements, the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the National Labor Relations Act, the Worker Adjustment Retaining Notification Act, and the Employee Retirement Income Security Act of 1974.

Topic: Employment Law
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Returning to the Workplace in the Face of COVID-19

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Written by Morgan N. Muñoz
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COVID-19 EMPLOYER UPDATE

UPDATED April 15, 2020

Local, State, and Federal officials are discussing plans to begin lifting social distancing restrictions over the coming weeks. Businesses shut down by such restrictions are already making plans to reopen. But it will not be business as usual when operations resume. Employers should start thinking through new employment complications that are likely to accompany employees’ return to work and should make a plan for protecting employees from the virus while at work.

Screening Employees for COVID-19 Symptoms

The Equal Employment Opportunity Commission (the “EEOC”) has provided some helpful guidance for employers navigating the challenges that COVID-19 poses for the workplace. COVID-19 has been declared an “international pandemic” by the World Health Organization, and because of the concern of community spread transmission, employers are encouraged to take additional precautions to prevent the spread of the virus.

Currently, employers may ask employees who report feeling ill or call in sick if they have any of the symptoms of COVID-19. Employees exhibiting symptoms of the virus should leave the workplace. Fever is one of several symptoms that an infected person may exhibit, and for that reason, the EEOC is permitting employers to take their employees’ temperatures. If an employer chooses to perform temperature checks, these checks should be performed consistently amongst all employees so as not to discriminate on the basis of specific characteristics. Employers may also ask employees about any travel and follow CDC advice before allowing traveling employees to return to work.

Employers may also require employees who have been out of the office because of potential infection to provide medical documentation certifying fitness for duty before permitting them to return to work. Any information gathered by employers regarding employees’ medical status or condition must be kept confidential and maintained separately from the employees’ personnel files.

OSHA/CDC Cleaning Protocol

The Occupational Safety and Health Administration has identified risk levels based on workplace settings.

  • Very High and High Exposure Risk:
    • Healthcare workers performing aerosol-generating procedures, healthcare or laboratory personnel collecting or handling specimens of known or suspected COVID-19 patients; healthcare delivery, medical transport workers, and support staff exposed to known or suspected COVID-19 patients.
    • Morgue workers performing autopsies on the bodies of people who are known to have or are suspected of having COVID-19 at the time of their death.
  • Medium Exposure Risk:
    • Workers who require frequent and/or close contact (i.e., within 6 feet) with people who may be infected with COVID-19, but who are not known or suspected COVID-19 patients.
  • Lower Exposure Risk:
    • Workers who do not require contact with people known to be, or suspected of being, infected with COVID-19 or frequent close contact (i.e., within 6 feet) with the general public. Workers in this category have minimal occupational contact with the public and other coworkers.

Employers are obligated to provide their workers with personal protective equipment needed to keep them safe while performing their jobs. The type of equipment will vary based on the risk levels above.

OSHA recommends establishing policies and practices for social distancing by implementing flexible worksites (e.g. telework), flexible work hours (e.g. staggered shifts), increasing physical space between employees, and between employees and customers at the worksite, downsizing operations, delivering services remotely (e.g. phone, video, or web), and delivering products through curbside pick-up or delivery.

If a person who is suspected of having COVID-19 or confirmed of same has been in your facility, the Centers for Disease Control recommend:

  • Closing off areas visited by the ill persons and opening outside doors and windows to ventilate the area for 24 hours before beginning to clean/disinfect.
  • Cleaning staff should clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment (e.g., touch screens, keyboards, remote controls) used by the ill persons, focusing especially on frequently touched surfaces.

Further guidance on cleaning and disinfection of community facilities may be found on the CDC’s website at www.cdc.gov and on the Department of Labor website at www.dol.gov/coronavirus.

Requests for Leave

COVID-19 is not going anywhere, and neither are the new leave laws passed by the federal government—at least for a while. The Families First Coronavirus Response Act (or “FFCRA”, which is in effect until December 31, 2020) created two types of paid leave for COVID-19 related reasons. Employers must post a notice that outlines these new employee rights under the FFCRA (the Department of Labor has published a notice that meets all necessary requirements: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf) and should have a plan in place for responding to requests for leave, including knowing what documentation to request to substantiate the need for leave.

For information on eligibility requirements and documentation required for leave under the FFCRA, see our April 7, 2020 Employer Update: Department of Labor Guidance on Paid Leave Under the Families First Coronavirus Act.

Requests to Continue Work from Home and Refusals to Return to Work

One issue that employers may face once social distancing restrictions are lifted is that employees may be hesitant to return to work. Employees may request to continue to work from home or may refuse to return to work altogether for a variety of reasons. Employers should keep in mind that in addition to the new leave laws addressed above, there are other existing employment laws tofollow.

If an employee is at particular risk for COVID-19, a doctor may advise the employee to continue to work from home or continue on unpaid leave as an “accommodation” under the Americans with Disabilities Act. Importantly, the EEOC has already determined that indefinite leaves of absence are not “reasonable” accommodations and employers need not permit such leaves of absence. If, on the other hand, a physician suggests a particular time frame and it is of a reasonable duration, employers should carefully consider permitting such leave.

If employees have been ordered to return to work and they do not qualify for leave under one or more of the situations listed above (or if they have exhausted their leave), employees may be terminated for job abandonment. However, before termination, employers should issue a written notice to the employee explaining the date at which the employee must return to work in order to avoid termination and should include a clear warning that the employee will be terminated for misconduct (i.e. the employee will not be entitled to unemployment benefits) if the employee does not return to work as ordered.

If the employee is currently receiving unemployment benefits, the employer should notify the Texas Workforce Commission that the employee was ordered to return to work and refused to do so.


These materials are made available by Stibbs & Co., P.C. for informational purposes only, do not constitute legal or tax advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Stibbs & Co., P.C. The facts and results of each case will vary, and no particular result can be guaranteed. The facts and results of each case will vary, and no particular result can be guaranteed. Employers should consult their tax advisors concerning the application of tax laws to their particular situation.

Employers are also encouraged to seek legal counsel prior to taking actions to avoid violations of federal or state employment laws including, but not limited to, the Family Medical Leave Act and its expansion under the Families First Coronavirus Response Act, the Fair Labor Standards Act, the Texas Payday Law, Texas small employer health insurance laws, new hire reporting laws, the Texas Commission on Human Rights Act, various EEO laws covered by Title VII of the Civil Rights Act of 1964, Occupational Safety and Health Administration laws, the Immigration Reform and Control Act, EEO-1 reporting requirements, the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the National Labor Relations Act, the Worker Adjustment Retaining Notification Act, and the Employee Retirement Income Security Act of 1974.


 

Topic: COVID-19
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Department of Labor Guidance on Paid Leave Under the Families First Coronavirus Response Act

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Written by Morgan N. Muñoz
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COVID-19 EMPLOYER UPDATE

UPDATED April 7, 2020

On April 1, 2020, the Department of Labor (“DOL”) Wage and Hour Division issued new regulations in order to aid in interpretation under the Families First Coronavirus Response Act (“FFCRA”). The FFRCA entitles employees to paid leave under two separate provisions: (i) the Emergency Paid Sick Leave Act (“EPSLA” or “Paid Sick Leave”); and (ii) the Emergency Family Medical Leave and Expansion Act (“EFMLEA” or “Expanded FMLA”) .

Applicability

  • Which businesses must comply withFFCRA?
    • All private employers with fewer than 500 employees (and some public employers).
  • Which employees count towards the 500-employee threshold?
    • Full-time employees
    • Part-time employees
    • Employees on leave
    • Temporary employees who are jointly employed with another employee
    • Day laborers supplied by a temporary placement agency
  • Which individuals do not count towards the 500-employee threshold?
    • Independent contractors
    • Employees who are on furlough or laid off
    • Employees outside of the United States

Employer’s Notice Obligation

  • Employers are required to keep posted a notice of the FFCRA requirements. An employer may also satisfy this requirement by emailing or mailing the notice to employees. The notice requirement applies even to businesses who may qualify for the small employer exemption.
  • A model notice is available at https://www.dol.gov/agencies/whd/posters.

Employee Eligibility for Leave

FFCRA

  • Paid Sick Leave (EPSLA) – Employee is eligible immediately upon his hire date
  • Expanded FMLA (EFMLEA) – Employee is eligible if he has been on the employer’s payroll for 30 calendar days

FFCRA Leave Entitlements

Helpful Guidance for Interpreting FFCRA Leave (Applies to Paid Sick Leave and Expanded FMLA)

  • Are employees entitled FFCRA leave if an employer offers telework?
    • No, the employee is not entitled to FFCRA paid leave if:
      • The employer has work for the employee to perform;
      • The employer permits the employee to perform that work from the location where the employee is waiting; and
      • There are no extenuating circumstances, such as serious COVID-19 symptoms, that may prevent the employee from performing that work.
  • Are employees entitled FFCRA leave if an employer closes his business?
    • No, if an employer does not have work available for an employee, then it does not have to provide FFCRA paid leave.
    • This analysis remains the same regardless of whether the employer closed his business due to a downturn or due to a stay-at-home order.
      • Example: If an employee is subject to a stay-at-home order, but his employer is not currently in operation, then the employee is not entitled to FFCRA leave because the employee would not be able to work even if he was not subject to the stay-at-home order.
  • Are employees who are on FFCRA leave entitled to continued health care benefits?
    • Yes, the employer must continue coverage under its group health care plan on the same terms as if the employee did not take leave.
    • If the employer provides a new health plan while the employee is on FFCRA leave, it must give the employee notice of the new plan so that the employee may elect to change coverage.
    • If the employment relationship would have terminated, then the employer does not have to maintain health benefits (i.e. employee does not return from leave or the employer closes its business).

The following circumstance is 1 of 6 reasons that an employee may qualify for Paid Sick Leave, and it is the only reason an employee may qualify for leave under the Expanded FMLA.

(i):The employee is caring for his or her child whose school or child-care provider is unavailable due to COVID-19 precautions:

  • Are employees entitled FFCRA leave if they have alternative childcare available?
    • No, an employee is not entitled to FFCRA leave if another suitable individual is available to care for the child, such as a co-parent or other usual care provider.
  • Which types of child-care closures entitle an employee to FFCRA leave?
    • Schools, pre-schools, and day care facilities
    • Before and after school care programs
    • Summer programs or camps

The following circumstances are the remaining reasons that an employee may qualify for Paid Sick Leave. Note that these circumstances do NOT qualify an employee for leave under theExpanded FMLA.

(ii): The employee is subject to a Federal, State, or local quarantine or isolation order:

  • What types of orders entitle employees to Paid Sick Leave?
    • The regulations define “Federal, State, or local quarantine or isolation order” broadly to include quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the Employee to be unable to work even though the employer has work that the Employee could perform but for the order. This also includes when a Federal, State, or local government authority has merely advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine.

(iii): The employee has been advised by a health care provider to self-quarantine:

  • Are employees entitled Paid Sick Leave if they have decided to self-quarantine?
    • No. An employee cannot receive FFCRA paid leave in order to self-quarantine unless he has been advised by a health care provider to do so based on the fact that the employee:
      • has COVID-19;
      • may have COVID-19; or
      • is particularly vulnerable to COVID-19.

(iv): The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis:

  • Are employees entitled FFCRA paid leave if they experience symptoms or are otherwise suspect that they have COVID-19?
    • An employee cannot receive FFCRA paid leave unless they are affirmatively taking steps to obtain a medical diagnosis.
    • An employee is entitled to FFCRA paid leave while awaiting the test results.
      • If an employee does not meet the criteria for testing but is advised by a health care provider to self-quarantine, then that employee is entitled to leave.

(v): The employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order, or caring for an individual who has been advised by a health care provider to self-quarantine:

  • Are there any criteria for the relationship that an employee must have before being entitled to FFCRA paid leave in order to care for an individual?
    • Yes, the employee must have a personal relationship (i.e. family member, roommate) that creates an expectation that the employee would care for that person if he was under quarantine.

(vi): The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor

  • There has been no interpretive guidance for this qualifying event.

Small Employer Exemption

  • Does my business qualify for an exemption from paying FFCRA paid leave?
    • Small businesses with less than 50 employees may be eligible for an exemption from some of the paid leave requirements if the DOL determines that compliance would “jeopardize the viability of the business as a going concern.” A business with less than 50 employees does not automatically qualify merely based on size alone.
  • What criteria qualifies a business for an exemption per the DOL?
    • An authorized officer of the business determines that the absence of the employee requesting leave would:
      • Cause the employer’s expenses to exceed available business revenue;
      • Pose a substantial risk to the operation of the business because of that employee’s specialized skill; or
      • Prevent the employer from operating at minimal capacity because the employer cannot find a capable replacement
  • How does my business request an exemption?
    • Any employer that denies an employee’s request for leave pursuant to the small employer exemption must document and retain the determination by its authorizing officer how it meets the criteria for that exemption. Currently there is no approval process, and the DOL is instructing employers not to send the documentation.
  • If it is determined that my business qualifies for the exemption, does this mean that my business does not have to pay any of the new paid leave entitlement under the FFCRA?
    • NO, if the employer is deemed exempt by the DOL, this only excuses employer from providing paid leave under a) the Expanded FMLA and b) the Paid Sick Leave if the employee’s need for leave is to take care of a child whose childcare is unavailable due to COVID-19. Consequently, even if the employer is deemed exempt, it must pay leave if the reason for leave is for one of the other 5 qualifying reasons enumerated in the EPSLA.

Documentation

  • What documentation must an employee provide to his employer to support FFCRA paid leave?
    • A signed statement containing:
      • Employee’s name;
      • Date(s) for which leave is requested;
      • COVID-19 qualifying reason for leave; and
      • Statement that the employee is unable to work or telework because of the COVID-19 reason.

The DOL requires the following additional documentation to support that COVID-19 is the qualifying reason for leave:

Emergency Paid Sick Leave Act

Qualifying Reason

  • The employee is subject to a Federal, State, or local quarantine or isolation order
  • The employee has been advised by a health care provider to self-quarantine
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis
  • The employee is caring for an individual who is subject to an order as described in subparagraph (i) or has been advised as described in paragraph (ii)
  • The employee is caring for his child whose school or child-care provider is unavailable due to COVID-19 precautions
  • The employee is experiencing any other substantially similar condition specified by theSecretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor

Required Documentation

  • Name of the government entity that issued the quarantine or isolation order
  • Name of the health care provider that advised the employee to self-quarantine
  • No DOL guidance advising of additionally required documentation
  • Depending on the reason for the request, the documentation required in subparagraph (i) or subparagraph (ii)
  • Name of the child being cared for; (b) name of the school or child-care provider that is closed; and (c) a statement that no other suitable person is available to care for the child
  • No DOL guidance advising of additionally required documentation

Emergency Family Medical Leave Expansion Act

Qualifying Reason

  • The employee is caring for his child whose school or child-care provider is unavailable due to COVID-19 precautions

Required Documentation

  • (a) Name of the child being cared for; (b) name of the school or child-care provider that is closed; and (c) a statement that no other suitable person is available to care for the child

Limitations on Amount of FFCRA Leave

  • Does an employee receive additional Paid Sick Leave if he changes employers?
    • No, each individual is entitled up to 80 hours of paid leave under the EPSLA. A new employer is only required to provide the employee with any sick leave remaining for that individual up to the 80 hours.
  • Does an employee’s use of other FMLA leave count towards the 12 weeks of EFMLEA leave?
    • Yes, employees may only use 12 weeks of Expanded FMLA leave between April 1, 2020-December 31, 2020, and any leave taken under the FMLA during that time must be deducted from the leave available under the Expanded FMLA.

Recordkeeping

  • Is my business required to retain documentation of requests for FFCRA paid leave?
    • Yes, an employer must maintain documentation for 4 years, regardless of whether the leave was granted or denied. Even an employee’s oral statement supporting paid leave must be documented and retained.

Tax Credits

  • Employers who pay FFCRA paid leave may be reimbursed through refundable tax credits for (i) wages paid under both Paid Sick Leave and Expanded FMLA (up to the aggregate caps), and (ii)the costs to maintain health care coverage under a group plan.
  • In order to claim tax credits from the Internal Revenue Service (“IRS”), employers should retain the following documentation for four years:
    • Documentation to show how the employer calculated FFCRA paid leave;
    • Documentation to show how the employer calculated the amount of qualified health plan expenses;
    • Copies of completed IRS Forms 7200 submitted to the IRS;
    • Copies of completed IRS Forms 941 submitted to the IRS; and
    • Documents needed to support the request for tax credits pursuant to IRS procedures. Visit https://www.irs.gov/forms-pubs/about-form-7200 and https://www.irs.gov/pub/irs-drop/n-20-21.pdf for an explanation on how to claim tax credits.

Enforcement

The DOL will not bring enforcement actions against any public or private employer for violations of the Act occurring within 30 days of the enactment of the FFCRA, i.e. March 18 through April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the Act.


These materials are made available by Stibbs & Co., P.C. for informational purposes only, do not constitute legal or tax advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Stibbs & Co., P.C. The facts and results of each case will vary, and no particular result can be guaranteed.The facts and results of each case will vary, and no particular result can be guaranteed. Employers should consult their tax advisors concerning the application of tax laws to their particular situation.

Employers are also encouraged to seek legal counsel prior to taking actions to avoid violations of federal or state employment laws including, but not limited to, the Family Medical Leave Act and its expansion under the Families First Coronavirus Response Act, the Fair Labor Standards Act, the Texas Payday Law, Texas small employer health insurance laws, new hire reporting laws, the Texas Commission on Human Rights Act, various EEO laws covered by Title VII of the Civil Rights Act of 1964, Occupational Safety and Health Administration laws, the Immigration Reform and Control Act, EEO-1 reporting requirements, the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the National Labor Relations Act, the Worker Adjustment Retaining Notification Act, and the Employee Retirement Income Security Act of 1974.


 

Topic: Employment Law