COVID FAQs

Our current position on having employees sign some type of COVID-19 liability waiver is: we question the value of these waivers and we question how much protection they would provide.

What you need to focus on is ensuring workplace safety and following the latest CDC, OSHA, public health, and ADA guidelines and protocols. The best way to protect yourself is to proactively engage all employees in being involved with and requiring them to take all precautions through training, orientation, and reminders.

Peace of mind will come from knowing you are doing all of those things right; not from a signed form or letter.

If it can be shown/proven that you were negligent, remiss or ignored taking all of the necessary steps/precautions to ensure a safe work environment (or essentially were using the waiver as a “get-out-of-jail” card to not do those things), then a signed letter or waiver is not going to help.

It’s also worth considering the message you send by having all employees sign a document like this, especially if other employers are not.

From an HR perspective, COVID-19 carries similar risks as other diseases that might be contracted in the workplace and liability waivers have not been viewed as valuable or beneficial.

If you are (or have been) taking all of the necessary steps, and an employee contracted COVID-19, it would be hard to make the case that you were negligent or personally responsible for the transmission.

Additional resources can be your worker’s compensation and liability insurance carriers.

In addition to the information below, please review our Reinstatement Guide.

On one hand, we can all appreciate the dilemma that these employees are in. We certainly don’t want them to start working the limited hours that are available and lose their unemployment benefits, resulting in a huge drop in their overall income. Especially if it is unclear when they will be able to get back up to full capacity work.

On the other hand, the special $600 unemployment benefit will not last forever—it ends July 31st—nor will regular unemployment benefits. Employees can roll the dice on the future and turn down employment at your office, hoping to earn unemployment benefits for some number of weeks or months, and then return to the workforce. However, when that time comes their employment opportunities may not be as plentiful as they think. This is their dilemma to navigate, not your problem to solve.

Consider working with your employees to solve the problem. As long as the $600 ‘kicker’ is in place, the goal is having your employees receive weekly compensation from you that doesn’t exceed their weekly unemployment. Therefore, they work for you (benefiting them and you); they still qualify for unemployment; and they still receive the extra $600.

Perhaps you can spread the hours among several employees so that each person is working, yet is still eligible for unemployment benefits.

When you need someone back at full capacity, they should recognize the opportunity and return to work, even if this means a slight drop in their total compensation. If they refuse, then they are effectively resigning their position.

Similar to raises and promotions, this process carries the risk of favoritism, as well as discrimination claims.

You’ll want to make sure that you have objective, clear, documented reasons for who returns to work and who receives the hours. One example is seniority: employees with the most seniority receive the most hours. Other examples could include employees who are cross-trained in certain areas, individuals with special licenses/certifications, or full-time employees returning to work before part-time employees.

As always, you want to avoid decisions (and the appearance of decisions) based on protected classes, such as age, race, sex, religion, color, national origin, pregnancy status, etc.

In addition to the information below, please review our new Reinstatement Guide.

First, engage in a dialogue with the employee about their reasons. Are they worried about contracting the virus from a co-worker? Or a patient/customer? Do they have someone in their household who is high-risk? Find out what could be done to alleviate their concerns. Would additional PPE make a difference? Or more space between workstations?

Second, make sure that your office is following the latest OSHA, CDC, ADA, and public health recommendations and requirements. You may need to update some of your SOPs and make physical changes to your office.

If you have done everything above, and an employee is absolutely unwilling to return to work regardless of any and all accommodations, then this may need to be treated as a leave of absence or voluntary resignation depending on your state. Due to the potential ramifications of this, we would recommend speaking with one of our HR Specialists before taking your final action.

Also, be careful about making safety decisions for your employees. This is usually done with good intentions to protect your team. However, this can easily lead to a discrimination claim. For example, if you have 4 employees under the age of 40, and one employee in her 60’s. While you gradually increase the business level back to normal, you tell the older employee to stay home and stay safe, while allowing the younger employees to return to work. This can result in an age discrimination claim.

If an employee is high-risk or doesn’t want to work for some reason, we strongly recommend speaking with and HR Specialist before ending employment or taking a strong stance against the employee.

The American Dental Association (ADA) as well as many state dental associations have recommended that dental practices close for non-emergency procedures. This has prompted many questions. All of the information below also applies if you cut back your work hours significantly, but are technically still “open.”

For our non-dental clients, the information below applies to you as well if you have been ordered to close, or if you choose to close, or some entity recommends that you close.

If you haven’t already, please review our Coronavirus FAQs which are constantly being updated as this unfolds.

If the business needs to close entirely, or limit the work hours, you are not required to pay non-exempt employees for the time they are out. If you choose to pay people for some or all of the time off, as a special bonus, you absolutely can. For the payment of wages to exempt employees, please see our FAQs.

Using PTO/Sick Leave/Vacation:

In a closure or limited-hours-situation, if employees have PTO/Sick/Vacation available, please refer to our Coronavirus FAQs about the usage of these benefits. It depends on your state and your particular situation.

Unemployment & Laying Off Employees:

Employees are able to file for unemployment during any business closure or time of reduced scheduling.

If you are temporarily laying off employees, and they will be doing absolutely no work at all, we recommend using our Temporary Layoff Letter.

If employees are still working on an on-call basis only, you can use the temporary layoff letter and state that in the document.

If employees are still working, doing projects, online training/CE, and other duties, then they are not laid off. You can use our Status/Benefit Change Notice form to document the drop in work hours and the change in duties.

Every state is different in how their unemployment department works. Some states take into account vacation/PTO/sick pay, others do not. Some have a waiting period and some do not. If you or your employees have specific questions about unemployment, please contact your department directly for the most accurate and up-to-date information.

Temporary Layoff Letter

Communication:

Let your employees know the situation and that you will be cutting back on hours or closing altogether. Encourage them to apply for unemployment. Depending on your state and your benefits, as well as your financial position, you can determine whether PTO/Sick/Vacation can be used. See our other FAQs on this topic.

Other Projects:

If you are not seeing patients or customers, you can consider having employees work on projects or other tasks. Of course, this depends on your financial position, given that you will not be producing revenue during this time.

Federal Stimulus Package:

There has been a lot of talk in the past couple days about a federal stimulus package that includes paid sick leave and paid family leave. The House passed a bill, and the president has sought stimulus funding as well. However, none of this has been finalized and everything is subject to change.

Until an actual bill has been approved by the House, Senate, and signed by the President, there is nothing for anyone to do. Speculation and rumors are not helpful. Until something is finalized, any income for employees will have to come from wages, paid time off benefits (PTO/Vacation/Sick Leave), or from unemployment benefits.

If the employer believes it is in their best interest to close the business, for any reason, but particularly for something like a Coronavirus/influenza outbreak, then they have the right to take that action. Similarly, if the business is required to be closed by some agency or entity, the following also applies.

Whether or not the employees are paid while off work will depend on their exempt/non-exempt status.

Exempt employees:

If the absence is initiated by the employee (including for his or her own illness or that of someone for whom he or she is caring), the employer may dock the exempt employee for full-day absences only, provided no work of any kind is done during the course of the day, even from home, like checking and answering emails.

If the absence is initiated by the employer (e.g., the employee must stay home for a mandatory quarantine period, even though he or she is asymptomatic and willing to come to work, business closure), the employer may dock the exempt employee only for full seven-day absences that coincide with the employer’s pay week so long as no work is performed during that entire absence.

Non-exempt employees:

Pay may be docked for any and all non-work time.

Yes. Given the circumstances, the individual will likely be eligible for benefits. There is always a waiting period before benefits will be paid out, however. If an employee has not otherwise satisfied the required waiting period, then this will need to occur first and payout will begin. Waiting periods vary from state to state and are generally 1-2 weeks.

We recommend that you start by contacting your carrier about this. The answer to this question depends on how many employees you have, the way your particular plan is written, what your eligibility criteria is, how long your closure lasts, your particular state leave of absence laws, and may depend on the outcome of the stimulus package (see the FAQ above on the Federal Stimulus.)

If you are only closed for a couple weeks, nothing will change or be adjusted. If the closure is longer, there may be some implications based on the variables above.

In general, yes, employees may substitute any paid time off benefits for unpaid time, as applicable for each employee.

This could be as a result of them choosing to be off or because we mandate them to be off due to business closure. We are concerned about the financial impact given that we won’t have revenue coming in.

Generally speaking, you are not required to pay out these benefits to employees in these circumstances. More than likely, employees will request at least a partial usage/payment depending on the timing. You may want to review your policy manual in case there is specific language one way or the other.

Given the extreme nature of the current situation, we would recommend not taking a hard stance, and being as flexible as possible. If you can work with employees and pay them for some or all of the time, without it having a detrimental impact on the business financials, that would be ideal.

If you are governed by a city, county, or state with mandatory sick leave or other paid leave rule, then you may be required to payout those benefits even if it is your preference to not, depending on the circumstance that led to the employee being off. For example, an employee who is sick and stays home would have the right to use sick leave benefits. Whereas an employee who stays home just because it is their preference would likely not qualify.

In all states and cities or counties that do not have mandated sick leave laws, yes, employees can be required to use these benefits during periods of non-work.

In states and cities or counties that have mandated sick leave laws, the use of sick time may not be mandated if the absence does not qualify for sick leave usage. However, employees could choose to use sick time voluntarily. If the reason for the absence qualifies under the sick leave rule, then it is allowable for the employer to require the use of available sick time.

The Occupational Safety and Health Act contains a “General Duty” clause which requires employers to provide a workplace free from recognized hazards that are likely to cause serious harm or death. Also included within this clause is the ability for employees to refuse to work if certain conditions apply.

The circumstances in which an employee can refuse to work are limited. Employees may refuse to work only if all of the following apply (a) they reasonably believe that doing the work would put them in serious and imminent danger; (b) they have asked their employer to fix the hazard; (c) there is no time to call the Department of Labor’s OSHA Administration; and (d) there is no other way to do the job safely. It is important to note that an employee is not protected for simply walking off the job.

In general, if an employee refuses to work because s/he believes in “good faith” that s/he is in imminent danger, it is his/her protected right to do so. “Good faith” means that the worker had reasonable grounds to believe imminent danger existed, even if that danger isn’t found to exist.

Although it is entirely possible for an employer to impose disciplinary measures to an employee for refusing to come work, taking that action may be ill-advised given the protections employees have. As a matter of practicality, it may be best for everyone involved if the employer allows for some flexibility during an influenza outbreak such as the Coronavirus.

Each situation will need to be handled on a case-by-case basis. For example, employees refusing to come to work because another co-worker had close contact with a family member who was sick with the Coronavirus may have a “good faith” belief that danger exists. On the other hand, simply refusing to work because the Coronavirus had materialized in the same city probably does not qualify.

Effective September 9, 2020 – New California Supplemental COVID-19 Sick Leave

Applicable Employers:

• ALL healthcare providers
• ALL employers with 500+ employees

On September 9, 2020, Governor Newsom signed AB 1867, a bill that requires covered employers to provide COVID-19 supplemental paid sick leave to their employees for certain qualifying reasons. This bill went into effect immediately.

A little history…

On April 16, Governor Gavin Newsom signed Executive Order N-51-20, creating a COVID-19 Supplemental Paid Sick Leave that requires employers, who are covered by Industrial Welfare Commission Wage Orders 3, 8, 13 and 14, Health & Safety Code section 113789 and have 500 or more employees, to provide up to two weeks (80 hours) of supplemental paid sick leave to food sector workers unable to work due to COVID-19.

AB 1867 broadly expands the paid sick leave coverage to the following:

• All health care providers and first responders whose employers elected to exclude them from the Families First Coronavirus Response Act (FFCRA) leave requirements, regardless of the number of employees.
• All employers with 500 or more employees in the United States must provide this benefit to their California employees.

Must be provided beginning no later than September 19, 2020.

COVID-19 Supplemental Paid Sick Leave remains in effect until December 31, 2020, the same date that the federal law that provides supplemental paid sick leave is set to expire. However, if the federal law is extended, then COVID-19 Supplemental Paid Sick Leave under California law will be extended to the same end date as the federal law. If the law expires while a worker is taking COVID-19 Supplemental Paid Sick Leave, the worker can finish taking the amount of leave they are entitled to receive.

The California Division of Labor Standards Enforcement (DLSE) has issued guidance on the new COVID-19 supplemental paid sick leave requirements. Click here for a link to their FAQs which answers employers’ common questions about coverage, eligibility, calculating leave amounts and pay, and how previously provided paid sick leave under local ordinances, for example, maybe credited toward the new law’s requirements.

The DLSE has also issued two model posters that employers may use to comply with the new law’s notice requirements. One for food sector workers, and a second for all other covered employers. Employers can download the posters and distribute as appropriate. Click here for the non-food sector poster.

Covered employers must display posters in a conspicuous place that informs employees about COVID-19 supplemental paid sick leave, but if an employer’s eligible workers don’t frequent a workplace, the employer may send the notice through electronic means (e.g., email).

Finally, employers outside of the food sector will need to update their wage statements to provide employees notice of the amount of COVID-19 supplemental paid sick leave available each pay period under the new law.

Update: 5/5/2020

Here is some useful FAQ information from the Treasury Department.

Congratulations on being one of the lucky ones to receive PPP loan funding.

First and foremost, think of your PPP loan as just that—a loan, with very favorable terms. Use the funds with discretion and make sound business decisions. In particular, don’t get too caught up in the PPP forgiveness aspect and make bad staffing decisions that can haunt you moving forward.

Unlike any other business challenge you may have faced in the past, this one is unique because of all of the moving parts you have to simultaneously consider, like: grants; EIDL loans; PPP loans; PPP loan forgiveness; state and local mandates; CDC/OSHA/ADA guidelines, recommendations and requirements; scarcity of supplies (PPE’s); FFCRA compliance; unemployment wrinkles; employee availability (school & day care closures); and a plethora of other issues that we may now refer to as the “new normal” that we have to contend with. And above all else is the ongoing health and safety of your patients/customers and employees.

While your PPP loan is designed to be principally used for payroll, rent and utilities, it can be used for anything you want to use it for. The PPP loan forgiveness provisions, however, are only applicable when PPP funds are used for the approved expenses (with at least 75% going to payroll) during the 8-weeks from funding, and only if, by June 30th, your wages are back to at least 75% of what they were on February 15th, and your staffing level is equal to what it was on February 15th.

It does not make good business sense to use PPP funds and pay employees a full or partial wage to stay home and do nothing, just to meet the forgiveness provisions.

Employment to work on projects, call patients, and do online CE could be a good use of PPP funds, but this may risk adherence with the “emergencies-only” and certain shelter-in-place orders—again lots of interlaced moving parts.

Naturally, everyone is excited about the forgiveness possibility with PPP loans, and that is very enticing. However, the allure of forgiveness is not worth making an unintended mistake, or doing something that could lead to liability in another area.

Update 7/27/2020:

We have made significant updates to our FFCRA How-To Guide based on the latest information from the Department of Labor. Please refer to the Guide for the latest information.

Update 5/20/2020:

We have created a new FFCRA How-To Guide that will take you step-by-step through this process. It includes the information below. Please check it out!

Update 5/5/2020:

There’s been a lot of talk about a “small business exemption” from the new Families First Coronavirus Response Act (FFCRA). Information is coming from a number of sources and causing confusion. We want to address some of those aspects and hopefully create some clarity for our clients.

Facts:

• Yes, there is a possible exemption for employers who have fewer than 50 employees.
• This exemption is only applicable to qualifying reason #5…when the reason for needing paid sick or family leave is due to “child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reason.” Paid sick or family leave for other reasons is still applicable at all times.
• The exemption is not automatic. Unlike other laws, the exemption is available and can possibly be applied, but it is not a given.
• No other exemption exists.

Do you qualify for an exemption? Here’s the criteria:

• When providing sick or family leave would jeopardize the viability of the small business as a going concern.
• A small business may claim this exemption if an authorized officer of the business has determined that:
  • The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  • The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
  • There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

A few things to consider:

• The FFCRA is in effect from April 1, 2020 to December 31, 2020. While you might be able to claim exemption now, that may not always be the case once you are back up and running later this year.
• If you are currently closed and have all employees on layoff status, meaning they’re not working any hours at all, FFCRA is currently not applicable. It will only be an issue later once your employees begin working again, whether full or partial schedules.
  • Once you resume normal operations, is it really possible that providing paid sick or family leave would “jeopardize the viability” of your business?
• You are reimbursed for any paid sick or family leave expenses you incur.
• Claiming exemption can cause liability. An employee can file a claim against you and challenge your assertion. The Department of Labor has been pretty clear that the burden of proof will be on the employer. Do you really want that liability? Is 80 hours of sick leave or $200.00 a day for family leave, which is completely reimbursed to you, really worth it in the long run?

If you decide to move forward with exemption, you should carefully and thoroughly document why your business meets the criteria set forth and keep it for at least four years. You do not send any materials to the Department of Labor.

Claiming Tax Credits:

The IRS has released details about claiming tax credits for the use of paid sick leave and paid family leave under HR6201. Here is the information.

The Department of Labor updated their FAQs about HR6201, the federal bill that passed recently.

This update provided additional information that is important and may be applicable to you. As always, don’t hesitate to reach out if you have questions regarding your unique situation.

On Friday April 3rd we did a webinar that touched on HR6201. Here are the recordings:

Part 1 of the webinar.

Part 2 of the webinar.

One requirement of all employers as part of HR6201 is displaying and/or distributing the following poster to the employees. Here is a special FAQ just on the poster.

Note: it has become clear that defining your employees’ status moving forward is important.

Category 1: Employees Who Remain Employed and Working

These are employees who continue to work their normal schedule or a reduced schedule. They may be working from home or the office. The key distinction is they are still working, and, therefore, an employee. They are not laid off or terminated.

Category 2: Employees Who Are Not Working

They may be on a furlough (or temporary layoff) or a permanent layoff (employment has ended) due to certain economic conditions or because the work place is closed for a few weeks or a few months. These employees are not scheduled to work at all.

Please look over the updated DOL FAQs with the above categories in mind, particularly questions 18 – 28.

Generally speaking, the paid sick leave and paid family leave requirements of HR6201 apply to Category 1 employees only, and thus do not apply to Category 2 employees.

Quick Facts:

• Became effective April 1st 2020
• Expires December 31, 2020
• It is designed to provide interim temporary relief, not long-term help
• It has two principal components: 1) sick leave and 2) family leave

To qualify for Sick Leave the employee must be:

1. Subject to federal, state, or local quarantine, or
2. Advised by a healthcare provider to self-quarantine, or
3. Experiencing symptoms and seeking diagnosis, or
4. Caring for an individual who is subject to federal, state, or local quarantine, or
5. Caring for son(s) or daughter(s) if school/child care facility is closed or child care provider unavailable, or
6. Experiencing any other “substantially” similar condition specified by HHS in consultation with the Treasury Department or Department of Labor

** These are the only qualifying criteria for this sick leave, no other condition, circumstance or situation qualifies for this particular sick leave benefit.

** The maximum amount of sick leave is 80 hours for a person working 40 hours per week; otherwise prorated based on average work hours.

** Sick leave pay is = normal wages up to $511 per day for numbers 1-3 above

** Sick leave pay is = 2/3 wages up to $200 per day for numbers 4-6 above

Paid Family Leave:

Employees must have worked 30 days with the employer to qualify.

** The family leave requirement only applies to criteria 5 and 6 above

** If qualified, an employee can receive up to 12 weeks of leave

** The first two weeks are unpaid

** The remaining 10 weeks’ pay is = 2/3rds normal wages up to $200 per day [$10,000 in the aggregate.]

For now, we are recommending that offices do what is best for them, their employees, and their patients right now in this moment. If the best thing is for you to take care of emergency patients, continue to do that. If it’s best to close your practice entirely and temporarily lay off your employees, then go ahead and do that.

If you need to lay off employees temporarily, please use our form here: [link]

The CARES Act contains provisions that are mostly outside the HR compliance scope. The bulk of the provisions that affect our clients have to do with expanded unemployment benefits (handled by your state unemployment department) and small business loans (coordinated through the Small Business Administration.)

We did a webinar on Friday April 3rd that touches on the CARES Act. You can view it here:

Part 1 of the webinar.

Part 2 of the webinar.