Updated COVID-19 Hot Topics for Employers

by Sheila Gladstone, Sarah Glaser, and Emily Linn

Perhaps the most significant event this year (in a year full of significant events) is the novel coronavirus (COVID-19) pandemic. With the rapid spread of the virus in the United States, the World Health Organization’s declaration that COVID-19 constitutes a global pandemic, and the continually updating state and local emergency orders, Texas employers have had to grapple with questions of how to safely continue their operations during COVID-19. As employment counsel, we have advised our public and private employer clients through disasters including hurricanes, floods, wildfires, and financial crises. Yet nothing has required us to interpret entirely new laws quite so urgently, nor required us to confirm we are still up-to-date on the new laws and regulations on a nearly daily basis, as this pandemic has.

Throughout 2020, we have been assisting clients in preparing for and operating during COVID-19, initially assisting with pandemic action plans, advising on how to move offices to remote work, and monitoring the interplay of questions about medical conditions within the bounds set by the Americans with Disabilities Act and the Families First Coronavirus Response Act. When COVID-19 cases increased rapidly in Texas over the summer, we helped our clients work with employees in quarantine and isolation, as well as navigate the exhaustion of leave under FFCRA, and consider how to ensure their offices were as safe as possible for employees returning to work. Now, as Texas schools return to in-person learning and the end of the year approaches, we find ourselves advising clients on a new set of challenges yet again. This article outlines some of the most common and timely COVID-19 employment law topics.

Families First Coronavirus Response Act (FFCRA)

There have been several updates from the Department of Labor related to the FFCRA. By way of reminder, the FFCRA was signed into law on March 18, 2020 in response to the rapidly spreading COVID-19 virus and is set to expire on December 31, 2020, unless it is renewed by Congress. The FFCRA provides up to 80 hours of paid sick leave (total) for employees and expands the use of FMLA leave, allowing paid leave for employees who need time off work to care for a child whose school or regular childcare provider is closed or unavailable. Private employers with fewer than 500 employees and all public employers, regardless of size, are covered by the Act. Employment lawyers everywhere immediately took a crash course in the law and shortly thereafter, the Department of Labor issued Regulations interpreting the law and a Frequently Asked Questions page on its website.

Since April, the DOL has been continuously updating the FAQs to address new concerns, and the recent changes are particularly interesting.

Revised Regulations

In early August, the Southern District of New York issued a decision invalidating portions of the Department of Labor’s (“DOL”) rules implementing the FFCRA. When the decision was issued, employment lawyers wondered if the decision applied nationally, and whether the DOL would appeal, as the stricken provisions would significantly change the way the FFCRA is implemented. On September 11, the DOL specified that the decision should be considered binding nationally but issued revised Regulations in response that reaffirmed most of the provisions struck down by the court. The revised Regulations made several changes to the FFCRA and are listed below.

• Reaffirmed the DOL’s previous position that employees may take FFCRA leave only if work would otherwise be available to them. If work is unavailable to the employee, then he or she is not eligible for leave under the FFCRA.
• Reaffirmed the DOL’s previous position that an employer must approve the use of intermittent leave under the FFCRA. An employer has the discretion to grant intermittent leave, but is not required to do so under the FFCRA.
• Revised the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care. The DOL further clarified that the employee’s role is what matters, not the type of service the employer provides (for example, a receptionist at an urgent care clinic is not a health care provider because he or she is not providing services directly, even though the clinic provides healthcare services).
• Clarified that employees must provide required documentation supporting their need for FFCRA leave to their employers “as soon as practicable” rather than before leave begins, although in many cases notice would be provided before leave begins.

The revised Regulations do not substantially change most employers’ implementation of the FFCRA; however, those who have exempted employees from coverage under the healthcare provider exemption should revisit that decision in light of the new, narrower definition. Additionally, employers should take note that employees must provide documentation “as soon as practicable,” which may not necessarily be before the leave begins.

Use of FFCRA Leave for Virtual Learning

As September and the return to school approached, one glaring piece of information was missing in the DOL’s FAQs and Regulations—whether employees who opt in to virtual learning are eligible for FFCRA leave. FFCRA leave is available for employees unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19. Many wondered whether that extended to employees who kept their child home from school voluntarily due to a concern for the child or family’s safety.

In late August, the DOL finally answered the question in new FAQs 98–100. When a school is “closed” to a child, such that he or she cannot attend in person, an employee is eligible to take paid leave under the FFCRA. If the school is temporarily closed, or operating on an alternate day (or other hybrid attendance) basis, FFCRA leave is available for those periods where an employee’s child cannot attend in-person instruction. On the other hand, if the school is open and giving the parent a choice between in-person or virtual learning, FFCRA leave is not available because the school is not “closed” due to COVID-19.

Therefore, when an employee requests FFCRA leave to care for a school-age child when school is back in session, employers must determine whether the school is “closed” due to COVID-19 to determine whether the employee is eligible for FFCRA leave. The IRS has added that when the child is 14 or older, the parent must explain why leave is needed for virtual learning.

FFCRA, ADA, and FMLA

Another important topic is the intersection between the FFCRA, the Americans with Disabilities Act (the ADA), and the Family and Medical Leave Act (FMLA). The ADA requires employers to provide reasonable accommodations to qualified employees with disabilities. Employees who are high risk based on guidance from the CDC may provide a note from their doctor requesting to work from home. Alternatively, employees may provide documentation that they have a medical condition that prevents them from wearing a facial covering. In either event, employers should engage in the usual ADA interactive process with the employee to determine whether they can provide a reasonable accommodation, and whether another reasonable accommodation will do. It may not be possible to accommodate an employee who is unable to wear a facial covering if doing so would threaten the safety of other employees or customers. In these instances, the employers should then consider whether working from home is an alternative. If work from home is not an option, employers may consider other accommodations such as allowing the employee to take more frequent breaks in areas where the employee may be able to safely take off their mask.

The ADA also regulates the medical inquiries employers can make of their employees, and requires employers to keep employees’ medical information confidential. A pandemic raises particular concerns under the ADA because the disaster intrinsically involves a medical condition. Some of the ADA’s parameters regarding medical inquiries have been relaxed to protect public health. For example, the EEOC has said that during the current COVID-19 pandemic, employers may take an employee’s temperature or ask about their symptoms in order to protect the workplace as a whole. On the other hand, the EEOC advises that the ADA’s confidentiality requirements remain – employers may not disclose to coworkers the name of employees who have contracted COVID-19, even during contact tracing. Instead, others who had close contact (less than 6 feet for more than 15 minutes) with the affected employee should be told only that they came into such close contact with “a coworker” and that they should be tested.

The FMLA provides eligible employees with 12 weeks of job-protected leave for their own or a family member’s serious health condition. Often, employees eligible for 80 hours paid sick leave under the FFCRA are also eligible for regular, unpaid FMLA leave, which should run concurrently with the paid sick leave. Additionally, the FMLA and ADA interact occasionally. An employee who exhausts FMLA leave may be entitled to additional unpaid leave as a reasonable accommodation under the ADA, when it is for a definite period of time.

Returning to Work After Quarantine or Isolation

Quarantine keeps someone who might have been exposed to the virus away from others. Isolation keeps someone who is infected with the virus away from others, even in their home. The CDC’s guidance on quarantine can be found here, and its guidance on isolation can be found here. Employers with employees who are either quarantining or isolating and wish to return the employee to work should check the CDC’s website for the most up-to-date information. The CDC has changed position more than once on the parameters for employees returning to work. The time period for returning to work may depend on the employee’s decision whether to get tested or to wait out the recommended time; when testing is available and recommended, two negative tests in a row at least 24 hours apart can shorten the isolation period. Because of such frequent guidance changes, employers should keep up to date on the latest guidance as necessary; we are happy to assist with providing current answers.

This article was prepared by the Firm’s Employment Law Practice Group: Sheila Gladstone, Sarah Glaser, and Emily Linn. If you would like more information, please contact Sheila at 512.970.5815 or sgladstone@lglawfirm.com, Sarah at 512.221.6585 or sglaser@lglawfirm.com, or Emily at 214.755.9433 or elinn@lglawfirm.com.