Risk Services Pandemic Response Information Archive

Archived on May 13, 2020

Paid Leave vs. Unemployment

How is determined if an employer is over or under 500 employees?

The 500-employee threshold is determined at the time your employee’s leave is to be taken. If you employ fewer than 500 full-time and part-time employees within the United States, which includes any State of the United States, the District of Columbia, or any Territory or possession of the United States, then you would need to comply. In making this determination, you should include employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer’s payroll); and day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship). Workers who are independent contractors under the Fair Labor Standards Act (FLSA), are not considered employees for purposes of the 500-employee threshold.

What if I am an essential business and remain open but I have had to lay off some of my workforce – do I have to provide paid leave or is the employee eligible for unemployment?

Under HR 6201, layoffs are not one of the criteria for being eligible for paid leave.  Employees laid off are eligible to file for unemployment benefits.

We are planning on continuing health coverage for our employees while we are closed.  Are employees still eligible for unemployment benefits if we are paying their health insurance premiums?

es, employees are still eligible for unemployment benefits.  Health insurance coverage and unemployment are separate.  Unemployment has to do with job loss and is a partial income replacement.

We are an essential business and remain open.  We do not have the option to telework or work remotely.  I have an employee that is concerned about being exposed and does not want to interact with customers.  Can I make them work?  What are my options?

If the employee is concerned about being exposed, then you could offer the employee the option of staying home and using any paid time off benefits they may have or take the time as unpaid leave.  This circumstance would not be covered under the new FFCRA law described above.

You may also require the employee to work and failure to do so could be grounds for termination; however, this option is not recommended.  Try to work with the employee as much as possible and accommodate if you can.

Can we require an employee to self-quarantine after traveling outside of the United States?

Yes.  All U.S. citizens, legal permanent residents, and their immediate families who are returning from a restricted country must self-quarantine in their homes for 14 days after their arrival.  In order to ensure compliance, local and state public health officials will contact individuals in the days and weeks following their arrival.

I have an employee that states they have an underlying medical condition and wants to be sent home.  Can I ask what the condition is?

This could be a reasonable accommodation and fall under the ADA, so I would recommend engaging in the interactive process and determine if a leave is a reasonable accommodation.  In light of the circumstances, I would take the information at face value and not request a doctor’s excuse. Document the information and maintain it confidentially in their medical file.

We are reducing our staff for a short duration of time, can we require those we feel that may be more vulnerable to COVID-19, such as someone who is pregnant or older to take the layoff and use their paid leave?

It’s possible this could fall under the Direct Threat provisions under the EEOC in a pandemic situation.  You can get more information on the guidance from the EEOC here.  You could request the employee received a medical note as to whether or not they could be vulnerable to an exposure.  However, I would not require them to take their paid leave.

We wanted to inquire if we were to have an employee who has either tested positive for COVID-19 or has symptoms, is there a template letter that we can use to send to employees that may have worked closely with that employee as an advisement.

Yes, you can find that letter here.

If I have a child that becomes symptomatic and is tested but comes out negative, will I qualify for the 80 hours PTO FFCRA?

The employee could receive the Emergency Paid Sick Leave to take care of the affected child until such time that the test is concluded as negative. It is typically taking 48 hours to get the results of the test.  They would not be entitled to all 80 hours.  However, please note that this law is through December 31, 2020, so they could use some of that EPSLA time later in the year.  There is a cap of $511 per day or $5,110 total over the entire paid sick leave period.

What if I have 4 children and each one becomes sick; will I qualify for the additional 10 weeks?  No, the 10 weeks applies to only when the school or daycare is closed.  If so, do I need proof my child is sick? Under the provisions of the Employee Paid Sick Leave, the DOL recently issued regulations stating that an employer should request documentation to support their request for leave.

If I get sick, will I qualify for the 80 hours PTO FFCRA?

Yes.

What if I can’t get in to see my doctor? What if I can’t get tested due to the shortage? What if it’s not COVID?
If the symptoms appear to be COVID (i.e. fever, dry cough, tight chest, difficulty breathing) then they should self-quarantine and would be eligible under the EPSLA.

What if I’m afraid to come to work due to exposure to the virus, can I collect unemployment? 

If there is work available, and the employee cannot telework, then they would not be eligible for unemployment. Nor would they be eligible for any of the paid leave provisions under the FFCRA. They could take any accrued, unused PTO they may have.

We have a half dozen employees that stopped coming to work due to fear of getting sick.  I was authorized to answer their UI claims “temp lay-off” so that they could get UI benefits. Now I have a warehouse full of people that are asking this same question. What should I do?

If they are afraid to come to work, allow them to take PTO or unpaid time. You can require employees to come to work if there is no telework, and as long as you are complying with the social distancing and sanitation guidelines.

I just had an employee that claims they were pulled over and threatened to get “cited” for being out and about.  He’s asking for a letter that states he is still working.  Is this something we should be concerned about?  I haven’t heard that people are getting pulled over, however there is a letter circulating that employees can have on hand that states they work for an essential business.

You can find that here and it should be customized to suit your industry/business.


Best Practices for Working Remotely in the time of COVID-19

Set Expectations
It’s important for managers to set clear expectations for remote workers.  Especially for non-exempt (hourly) employees who are used to a more structured schedule since the company is still responsible for ensuring that all time worked is properly tracked and meal and rest breaks are taken in accordance with the law.  Often times when working from home, it’s easy to skip breaks or forget to record work time, as employees may work on projects at different hours than they would if they were in the office.  Especially now, when many employees working from home also have children attending virtual classrooms.

It’s also important to allow flexibility at this time.  Employees may choose to work a couple of hours early in the morning before kids begin their virtual classes, and then pick back up again later in the afternoon.  The importance of remote workers’ performance should be focused on output and completion of objectives rather than on time-based performance as long as hourly employees are tracking all hours worked. Managers and supervisors should check in regularly with employees to ensure they are taking their breaks and review timecards to make sure time is being tracked.
 
Create a Remote Work Agreement

It’s a good idea to create a remote work agreement. If you choose to only allow telework during the COVID-19 crisis, then you may want to tailor the agreement by noting that the telework arrangement is temporary, so that employees don’t develop the expectations that they can continue telework once the COVID-19 crisis is over.  Agreements should also clarify that expectations are subject to change quickly and unexpectedly given the current climate. Here is a sample temporary Telecommuting/WorkFlex policy that can be customized to your business operations.
 
Technology and Equipment
Employers should consider what equipment and resources employees will need while working remotely and what the company will supply.  Whether it’s laptops and videoconferencing tools or reimbursements for office supplies, phone calls, shipping, etc., all of this should be discussed with the employee and agreed upon.

Tech support should also be mentioned.  Who should they contact in the event they experience technical difficulties?  And what about cybersecurity?  How will you secure the technology the remote workforce is using?  Unfortunately, this pandemic is also providing opportunity for cybercriminals to exploit unsecured technology systems and unsuspecting newly remote employees.

Communication is Key
It’s important to continue with regularly scheduled meetings, which can be accomplished virtually.  Consider the types of tools you will use when meeting with your team or one-on-one.  Is it just a phone call or a virtual video meeting platform?  Now, more than ever, it is important for your employees to feel connected and to make sure they are in the loop on the happenings within the organization.

A weekly email bulletin acknowledging employees’ contributions and delivering company happenings as well as utilizing communal platforms (like Slack or Microsoft Teams) where employees can discuss/share projects, and also bond over their favorite new TV series, helps to keep the workforce connected and engaged.


CARES Act SBA Flow Chart
Paycheck Protection Program—Fact-Sheet
Small Business Owners Guide to the CARES Act