Equal Employment Opportunity Commission (EEOC) Issues Updated COVID-19 Guidance

On June 11, 2020, the EEOC issued updated guidance on COVID-19 issues broadly relating to accommodations, harassment, and medical screening. The text of the new guidance is reflected below and can also be found on the EEOC’s website at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

D.13.  Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition? (6/11/20)

No.  Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment.  The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated.

For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.

Of course, an employer is free to provide such flexibilities if it chooses to do so.  An employer choosing to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected EEO basis.

E.3.  How may employers respond to pandemic-related harassment, in particular against employees who are or are perceived to be Asian? (6/11/20)

Managers should be alert to demeaning, derogatory, or hostile remarks directed to employees who are or are perceived to be of Chinese or other Asian national origin, including about the coronavirus or its origins.

All employers covered by Title VII should ensure that management understands in advance how to recognize such harassment.  Harassment may occur using electronic communication tools – regardless of whether employees are in the workplace, teleworking, or on leave – and also in person between employees at the worksite.  Harassment of employees at the worksite may also originate with contractors, customers or clients, or, for example, with patients or their family members at health care facilities, assisted living facilities, and nursing homes.  Managers should know their legal obligations and be instructed to quickly identify and resolve potential problems, before they rise to the level of unlawful discrimination.

Employers may choose to send a reminder to the entire workforce noting Title VII’s prohibitions on harassment, reminding employees that harassment will not be tolerated, and inviting anyone who experiences or witnesses workplace harassment to report it to management.  Employers may remind employees that harassment can result in disciplinary action up to and including termination.

E.4.  An employer learns that an employee who is teleworking due to the pandemic is sending harassing emails to another worker.  What actions should the employer take? (6/11/20)

The employer should take the same actions it would take if the employee was in the workplace.  Employees may not harass other employees through, for example, emails, calls, or platforms for video or chat communication and collaboration.

G.6.  As a best practice, and in advance of having some or all employees return to the workplace, are there ways for an employer to invite employees to request flexibility in work arrangements? (6/11/20)

Yes.  The ADA and the Rehabilitation Act permit employers to make information available in advance to all employees about who to contact – if they wish – to request accommodation for a disability that they may need upon return to the workplace, even if no date has been announced for their return.  If requests are received in advance, the employer may begin the interactive process. An employer may choose to include in such a notice all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19, provide instructions about who to contact, and explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions.

An employer also may send a general notice to all employees who are designated for returning to the workplace, noting that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis. The employer should specify if the contacts differ depending on the reason for the request – for example, if the office or person to contact is different for employees with disabilities or pregnant workers than for employees whose request is based on age or child-care responsibilities.

Either approach is consistent with the ADEA, the ADA, and the May 29, 2020 CDC guidance that emphasizes the importance of employers providing accommodations or flexibilities to employees who, due to age or certain medical conditions, are at higher risk for severe illness.

Regardless of the approach, however, employers should ensure that whoever receives inquiries knows how to handle them consistent with the different federal employment nondiscrimination laws that may apply, for instance, with respect to accommodations due to a medical condition, a religious belief, or pregnancy.

G.7.  What should an employer do if an employee entering the worksite requests an alternative method of screening due to a medical condition? (6/11/20)

This is a request for reasonable accommodation, and an employer should proceed as it would for any other request for accommodation under the ADA or the Rehabilitation Act.  If the requested change is easy to provide and inexpensive, the employer might voluntarily choose to make it available to anyone who asks, without going through an interactive process. Alternatively, if the disability is not obvious or already known, an employer may ask the employee for information to establish that the condition is a disability and what specific limitations require an accommodation. If necessary, an employer also may request medical documentation to support the employee’s request, and then determine if that accommodation or an alternative effective accommodation can be provided, absent undue hardship.

Similarly, if an employee requested an alternative method of screening as a religious accommodation, the employer should determine if accommodation is available under Title VII.

H.1.  The CDC has explained that individuals age 65 and over are at higher risk for a severe case of COVID-19 if they contract the virus and therefore has encouraged employers to offer maximum flexibilities to this group.  Do employees age 65 and over have protections under the federal employment discrimination laws? (6/11/20)

The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older.  The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.

Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age.  However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.

Workers age 65 and older also may have medical conditions that bring them under the protection of the ADA as individuals with disabilities.  As such, they may request reasonable accommodation for their disability as opposed to their age.

I.1.  If an employer provides telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic, are there sex discrimination considerations? (6/11/20)

Employers may provide any flexibilities as long as they are not treating employees differently based on sex or other EEO-protected characteristics.  For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.

J.1.  Due to the pandemic, may an employer exclude an employee from the workplace involuntarily due to pregnancy? (6/11/20)

No.  Sex discrimination under Title VII of the Civil Rights Act includes discrimination based on pregnancy.  Even if motivated by benevolent concern, an employer is not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough.

J.2.  Is there a right to accommodation based on pregnancy during the pandemic? (6/11/20)

There are two federal employment discrimination laws that may trigger accommodation for employees based on pregnancy.

First, pregnancy-related medical conditions may themselves be disabilities under the ADA, even though pregnancy itself is not an ADA disability.  If an employee makes a request for reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the usual ADA rules.  

Second, Title VII as amended by the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work.  This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work.  Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.  

For assistance with COVID-19 issues in your workplace, please contact one of our employment law specialists: Autum Flores (autum.flores@uwlaw.com), Ann Manning (ann.manning@uwlaw.com), or Kelly Utsinger (Kelly.utsinger@uwlaw.com). 




Additional COVID-19 Guidance From Department of Labor (DOL)

On April 10, 2020, the DOL issued additional COVID-19 guidance on case reporting and unemployment compensation.  Please see below a summary of the DOL’s new guidance. 

Guidance for Recording Cases of COVID-19

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued interim guidance for enforcing OSHA’s recordkeeping requirements (29 CFR Part 1904) as it relates to recording cases of COVID-19.

Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19, if the case:

– Is confirmed as a COVID-19 illness;

– Is work-related, as defined by 29 CFR 1904.5; and

– Involves one or more of the general recording criteriain 29 CFR 1904.7, such as medical treatment beyond first aid or days away from work.

In areas where there is ongoing community transmission, employers other than those in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting and law enforcement services), and correctional institutions may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work. Accordingly, until further notice, OSHA will not enforce its recordkeeping requirements to require these employers to make work-relatedness determinations for COVID-19 cases, except where:

(1) There is objective evidence that a COVID-19 case may be work-related; and

(2) The evidence was reasonably available to the employer.

Employers of workers in the healthcare industry, emergency response organizations and correctional institutions must continue to make work-relatedness determinations pursuant to 29 CFR Part 1904. 

Guidance Regarding Pandemic Emergency Unemployment Compensation Program

The U.S. Department of Labor’s Employment and Training Administration (ETA) released an Unemployment Insurance Program Letter (UIPL) 17-20, which provides further guidance to states as they implement the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), including the Pandemic Emergency Unemployment Compensation (PEUC) program.

Under the Pandemic Emergency Unemployment Compensation program, states can provide up to 13 weeks of federally funded benefits to qualified individuals who:

– Have exhausted all rights to regular compensation under state law or Federal law with respect to a benefit year that ended on or after July 1, 2019;

– Have no rights to regular compensation with respect to a week under any other state UC law or Federal UC law, or to compensation under any other Federal law;

– Are not receiving compensation with respect to a week under the UC law of Canada; and

– Are able to work, available to work, and actively seeking work, although states must offer flexibility on “actively seeking work” where there are COVID-19 impacts and constraints.

– The cost of PEUC benefits is 100% federally funded. States may not charge employers for any PEUC benefits paid. Implementation costs and ongoing administrative costs are also 100% federally funded.

– In addition to the PEUC program, ETA has also provided guidance to the states regarding two additional CARES Act unemployment programs.

Under Federal Pandemic Unemployment Compensation (FPUC),states will administer an additional $600 weekly payment to certain eligible individuals who are receiving other benefits. The guidance makes clear that:

o   If an individual is eligible to receive at least $1 (one dollar) of qualifying state unemployment benefits, the individual will receive the full $600 weekly payment under this program. 

o   Child support obligations may be deducted from the FPUC payments.

o   The FPUC payments are taxable income.

The Pandemic Unemployment Assistance (PUA)program assists individuals who do not qualify for regular unemployment compensation and are unable to continue working as a result of the coronavirus, including self-employed workers, independent contractors, and gig workers. PUA provides up to 39 weeks of benefits to qualifying individuals who are able to work and available for work but are unemployed, partially unemployed, or unable or unavailable to work due to one of the following COVID-19 related reasons:

o   The individual has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;

o   A member of the individual’s household has been diagnosed with COVID-19;

o   The individual is providing care for a family member or a member of the individual’s household who has been diagnosed with COVID-19;

o   A child or other person in the household for which the individual has primary caregiving responsibility is unable to attend school or another facility that is closed as a direct result of the COVID-19 public health emergency and such school or facility care is required for the individual to work;

o   The individual is unable to reach the place of employment because of a quarantine imposed as a direct result of the COVID-19 public health emergency;

o   The individual is unable to reach the place of employment because the individual has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

o   The individual was scheduled to commence employment and does not have a job or is unable to reach the job as a direct result of the COVID-19 public health emergency;

o   The individual has become the breadwinner or major support for a household because the head of the household has died as a direct result of COVID-19;

o   The individual has to quit his or her job as a direct result of COVID-19; or

o   The individual’s place of employment is closed as a direct result of the COVID-19 public health emergency.

As always, please contact us at Underwood Law Firm with any questions or concerns. 

 

 




New DOL Rules on Families First Act

The DOL has issued new rules providing further instructions and guidance on the Families First Act. 

Please follow the link here to see the entire text of the new rules. https://www.dol.gov/agencies/whd/ffcra  It is a long and complex document, so as always, please don’t hesitate to reach out with specific questions.

We have fielded a significant number of questions on this Act, andbelieve the below bullet points address the most frequent questions we have received:

1. Employers must obtain documentation from employees certifying the employee’s need for leave under either Emergency Sick Leave or the Emergency FMLA.

a. Such documentation must include a signed statement from the employee containing the following information: (1) the employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.

b. An employee must provide additional documentation depending on the COVID-19 qualifying reason for leave.

i.  An employee requesting paid emergency sick leave due to an individual quarantine must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject.

ii.  An employee requesting paid emergency sick leave due to a doctor-advised quarantine must provide the name of the health care provider who advised him or her to self-quarantine for COVID-19 related reasons.

iii.  An employee requesting paid emergency sick leave to care for an individual subject to quarantine or isolation must provide either (1) the government entity that issued the quarantine or isolation order to which the individual is subject or (2) the name of the health care provider who advised the individual to self-quarantine, depending on the precise reason for the request.

iv.  An employee requesting to take paid emergency sick leave or expanded family and medical leave to care for his or her child must provide the following information: (1) the name of the child being care for; (2) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave.

2. The Emergency FMLA entitlement is not an additional entitlement to other FMLA leave.  In other words, an employee who was otherwise eligible for FMLA is entitled to 12 weeks total, to include both regular FMLA and Emergency FMLA.  If an employee has already used their 12 weeks of FMLA, they are not entitled to additional Emergency FMLA.

3. A small employer (fewer than 50 employees) is exempt from the requirement to provide leave to an employee to care for the employee’s son or daughter whose school is closed or whose childcare provider is unavailable when: (1) such leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity; (2) the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or (3) the small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.

a. For reasons (1), (2), and (3), the employer may deny paid sick leave or expanded family and medical leave only to those otherwise eligible employees whose absence would cause the small employer’s expenses and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at minimum capacity, respectively.

b. If a small employer decides to deny paid sick leave or expanded family and medical leave to an employee or employees whose child’s school or place of care is closed, or whose child care provider is unavailable, the small employer must document the facts and circumstances that meet these criteria to justify such denial. The employer should not send such material or documentation to the Department, but rather should retain such records for its own files.

Thank you,

Underwood Law Firm




Combatting the Effects of COVID-19: Employees

“U.S. Department Of Labor Publishes Guidance Explaining Paid Sick Leave And Expanded Family and Medical Leave Under The Families First Coronavirus Response Act”

The Department of Labor has provided guidance in response to COVID-19.  

The official press release by DOL states “The Families First Coronavirus Response Act (FFCRA) FFCRA will help the United States combat and defeat COVID-19 by giving all American businesses with fewer than 500 employees funds to provide employees with paid leave, either for the employee’s own health needs or to care for family members.”

Please see below for a list of Fact Sheets/FAQs that must be posted in your work place, as well as the official press release.

FFCRA_Poster_WH1422_Non-Federal

OPA-FINAL_20-512-NAT_WHD_FFCRA Guidance




Underwood Law Firm Client Alert – Families First Coronavirus Response Act

UNDERWOOD LAW FIRM CLIENT ALERT

FAMILIES FIRST CORONAVIRUS RESPONSE ACT

On March 18, 2020, the President signed into law the Families First Coronavirus Response Act. The Act contains a number of important employment-related provisions, which are summarized below. These provisions will take effect on April 2, 2020 and will remain in effect through the end of 2020.

Emergency Paid Sick Leave:  The Emergency Paid Sick Leave requirements apply to private employers with fewer than 500 employees. Employers of 50 or less may apply to the Department of Labor for an exemption if complying with requirements would jeopardize the viability of the business as a going concern.

Emergency Paid Sick Leave is available to all current employees, regardless of the length of their service, their full-time/part-time status, and/or their exemption status. Employees may take Emergency Paid Sick Leave in any of the following circumstances:

  1. The employee is subject to a Federal, State, or local quarantine related to COVID‑19;
  2. The employee is advised by a health care provider to self-quarantine due to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to a quarantine or advised to self-quarantine (as described in sections (1) and (2));
  5. The employee is caring for a son or daughter if the school or place of care has been closed due to COVID-19, or if the child’s caretaker is unavailable due to COVID-19; or
  6. The employee is experiencing any other conditions specified by the Secretary of Health and Human Services (unless the employee is a health care provider or emergency responder, in which case the employer can exempt the employee from this sub-section). 

The amount of pay received by employees depends on their status and their reason for taking leave:

  • Full-time employees are entitled to 80 hours of emergency paid sick leave.
  • Part‑time employees are entitled to the average number of hours worked in a two-week period.
  • For employees who take Emergency Paid Sick Leave for a reason directly related to the employee’s own exposure or concern (reasons 1-3 described above), the employee is entitled to be paid at the employee’s regular rate of pay, not to exceed $511 per day and $5,110 in the aggregate.
  • For employees who take Emergency Paid Sick Leave for a reason relating to for others or other conditions specified by the Government (reasons 4-6 described above), the employee is entitled to be paid at two-thirds the employee’s regular rate of pay, with a cap of $200 a day and $2,000 in the aggregate.

The DOL is expected to issue further guidance on calculating rate of pay before the Act becomes effective on April 2, 2020. 

The Act makes clear that Emergency Paid Sick Leave does not replace paid leave available to employees under other laws or current company policies. Emergency Paid Sick Leave is to be provided in addition to any other such paid leave.

Emergency Family and Medical Leave:  The Emergency Family and Medical Leave (“Emergency FMLA”) provisions essentially expand FMLA coverage during this period of pandemic. Its requirements also apply to private employers with fewer than 500 employees, though again, employers with fewer than 50 employees can request an exemption from the Department of Labor if complying would jeopardize the viability of the business as a going concern.  To be eligible for benefits, employees must have been employed with the employer for at least 30 calendar days. Health care providers or emergency responders may be excluded from the definition of employees eligible for such benefits. 

Eligible employees may take up to 12 weeks of job-protected leave to allow an employee, who is unable to work or telework, to care for the employee’s minor child (under 18 years of age) if the child’s school or place of care is closed or the childcare provider is unavailable due to COVID-19. The first 10 days of Emergency FMLA leave are unpaid. The rest of the days taken must be paid for full-time employees at two-thirds the employee’s regular rate of pay, up to $200 per day and $10,000 in the aggregate. Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking Emergency FMLA. The employee can elect to use any available, accrued vacation, sick leave, or other PTO during the first 10 days of unpaid leave. 

As with regular FMLA, employees who take Emergency FMLA generally should be restored to their prior or equivalent job position upon return from leave. However, employers with fewer than 25 employees are generally excluded from this requirement if the employee’s position no longer exists following the Emergency FMLA leave due to an economic downtown or other circumstances caused COVID-19. To be eligible for this exclusion, the employer must make reasonable attempts to return the employee to an equivalent position, and it must make efforts to return the employee to work for up to a year following the employee’s leave.

Tax Credits for Emergency PSL and Paid Emergency FMLA: Employers are entitled to a refundable tax credit equal to 100% of the qualified wages paid to employees under these provisions. If the tax credit exceeds the amount of employment taxes the employer owes for any relevant quarter, the employer will be entitled to a refund of the excess tax credit.

The attorneys at Underwood Law Firm are available to answer questions regarding these changes.  Please reach out to your contact at Underwood.