Atkinson’s Answers – COVID-19 Frequently Asked Questions – Part 2

04.28.2020

Following are some of the more frequent questions we’ve received from the community regarding COVID-19 (Coronavirus), organized by area of law.

Please note: these issues remain fluid, we continue to see ongoing updates from federal, state, and local government agencies which may change our approach.

Discrimination-Related Inquiries

We have an employee who is over 65. This employee wants to continue working in the workplace during the COVID-19 crisis. Are we able to allow this employee to continue working in the workplace in light of the CDC’s recommendations that people who are 65 and older remain at home?

Yes, this employee is able to continue working. At the present time, the California stay-at-home order and related city/county orders do not prohibit a person who is over 65 from going to work if the company remains in operation and has work available. If this employee feels comfortable continuing to report to work, the employee should be allowed to do so. As always, the employer should not affirmatively single out employees based on the employee’s age.

Wage and Hour-Related Inquiries

Because of the current situation, we are terminating several employees. Are we able to pay these employees’ final wages via direct deposit?

Yes, if final pay via direct deposit has been authorized by the employee. Final wages can be paid by direct deposit, but to do so, the deposit must be completed and the final wages must be available to the employee on the day of termination.

The California Labor Commissioner provides the following answer to your question:

Direct deposits of wages to an employee’s bank, saving and loan, or credit union account that were previously authorized by the employee are immediately terminated when an employee quits or is discharged, and the payment of wages upon termination of employment in the manner described [by law] shall apply UNLESS the employee has voluntarily authorized that deposit and provided that the employer complies with the provisions of Labor Code Section 213(d) relating to the payment of wages upon termination or quitting of employment.

Labor Code section 213(d) provides: “If an employer discharges an employee or the employee quits, the employer may pay the wages earned and unpaid at the time the employee is discharged or quits by making a deposit authorized pursuant to this subdivision, provided that the employer complies with the provisions of this article relating to the payment of wages upon termination or quitting of employment.”

Families First Coronavirus Response Act (“FFCRA”) Leave-Related Inquiries

FFCRA Exemptions

Under what circumstances is a small business (i.e., one with fewer than 50 employees) able to claim the small business exemption and deny an employee the leaves available under the FFCRA?

As a reminder, the small business exemption applies only to an employee who requests leave due to school or childcare closure. It does not apply to the other five qualifying uses of FFCRA Paid Sick Leave.

A small business with fewer than 50 employees is exempt from the requirement to provide an employee Emergency Paid Sick Act leave (“EPSLA leave”) due to school or childcare closure under the following three circumstances and/or Emergency Family and Medical Leave Extension Act leave (“EFMLEA leave”):

When providing the leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and would cause the small employer to cease operating at a minimal capacity;
When 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
When 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.

If a small employer wishes to take advantage of this exemption, the employer should thoroughly document why it qualifies for the exemption. Employers do not need to send any paperwork to the Department of Labor to “obtain” the exemption.

Is the exemption from the FFCRA for health care workers particular to the employee’s duties, or does it apply to all employees at health care employers? For example, is an HR person at a hospital exempt from FFCRA benefits, even if the employee is not technically providing health care?

The health care provider exclusion is not based on job duties. It extends to all employees of a health care facility.

Under the new regulations (29 CFR 826.30) the definition of “health care provider” for purposes of determining whether an employee can be “excluded” from taking leave under the EPSLA and the EFMLEA is extremely broad and extends to “anyone employed at any doctor’s office, hospital, health care center, clinic …” Therefore, using the below example, the hospital would be able to exclude the HR person (who works for the hospital) from taking these leave benefits.

That being said, the “exclusion” of employees of “health care providers” is not mandatory. A health care facility can choose to allow its employees to take leave under the EPSLA and the EFMLEA and would be able to recoup the tax credit — provided that all of the leave requirements were met. If a health care facility were to exercise the exclusion option, that exclusion would are impact an employee’s ability to use any employer-provided benefits and/or other available state/federal leave for which the employee qualifies.

Business Closure

We are facing a dramatic loss of business due to COVID-19 and will be laying off several employees. Are we required to provide these employees with FFCRA leave?

No, you are not. Under the DOL regulations, employees are not eligible to obtain FFCRA paid leave when there is no work available due to a business closure or a furlough — even if the closure is due to a government stay-at-home order or due to a lack of business resulting from the COVID-19 crisis. Instead, as implied by the DOL, these employees should apply for unemployment benefits.

We are temporarily closing our entire business due to COVID-19 and currently have employees out on FFCRA leave. Are we required to continue providing the paid leave benefits to these employees after we close our business?

No, you are not. The DOL has explained that in the event a company closes while it has employees out on FFCRA leave, the employees are no longer entitled to received FFCRA leave benefits as of the date the worksite closes. At that time, those employees can apply for unemployment insurance benefits.

FFCRA Emergency Paid Sick Act (“EPSLA”) Leave

Are we able to use the qualifying reason #6 to pay EPSLA benefits to employees that are sent home with similar symptoms to COVID-19 but are not seeking medical diagnosis?

Under the FFCRA, employees are able to take EPSLA leave if “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” (qualifying reason #6).

At the present time, neither the DOL nor the Department of Human Health Services (“DHHS”) has defined “any other substantially similar condition.” The DOL has indicated that it is waiting to see how the DHHS will identify any “substantially similar condition” that would allow an employee to take paid sick leave. The DOL intends to issue guidance explaining when an employee may take paid sick leave on the basis of a “substantially similar condition” once that term has been defined.

Until such time as further guidance is issued, qualifying reason #6 should not be relied upon as a reason for providing EPSLA leave.

We have an employee who took five days of EPSLA leave two weeks ago in order to care for a family member. The employee returned to work last week. Now, the employee is asking to take additional time off in order to be tested for COVID-19. Is the employee entitled to another five days of EPSLA leave?

Yes, the employee is entitled to an additional five days of EPSLA leave. Employees may take up to two weeks—or ten days—(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of EPSLA leave for any combination of qualifying reasons. However, the total number of hours of EPSLA leave an employee may receive is capped at 80 hours.

We have an employee who is requesting to take EPSLA leave because a healthcare provider has directed the employee to self-quarantine. This employee’s job can be performed remotely and the company is prepared to allow this employee to work remotely during the two-week self-quarantine period. Are we required to provide this employee with EPSLA leave at this time?

No, you are not. The new DOL regulations explain that an employee subject to a quarantine or isolation order is not able to take emergency paid sick leave if (a) the employer has work for the employee to perform; (b) the employer permits the employee to perform that work from the location where the employee is being quarantined or isolated; and (c) there are no extenuating circumstances (like a power outage at the employee’s home) that prevent the employee from performing that work.

Please be advised, however, that if this employee were to become sick with COVID-19 and experience serious symptoms that rendered the employee unable to work, the employee may be eligible for EPSLA leave.

We have an employee who has requested a leave of absence because the employee’s doctor has informed the employee she is at high risk for COVID-19. Are we required to provide the employee with FFCRA leave?

The employee would be eligible for up to 80 hours of FFCRA EPSLA leave while the employee is isolating due to doctor’s orders.

The 12 weeks of EFMLEA leave is only available for school/child care closure, so this employee would not be eligible for EFMLEA leave due to being at high risk for COVID-19. After the employee has exhausted EPSLA leave benefits, the employee would be able to apply for unemployment insurance benefits.

Emergency Family and Medical Leave Extension Act (“EFMLEA”) Leave

We have a pregnant employee who has requested 12 weeks of EFMLEA leave to care for school-aged children. The baby is due in August. When the baby comes, will the company still be required to provide the employee with Family and Medical Leave Act (“FMLA”) or California Family Rights Act (“CFRA”) leave?

The DOL has clarified that EFMLEA leave runs concurrently with FMLA leave. Once the employee has taken 12 weeks of EFMLEA leave, the employee will have exhausted all available FMLA leave. However, EFMLEA leave does not run concurrently with CFRA leave. This means that any employee who takes EFMLEA leave would still be eligible for 12 weeks of CFRA. This particular employee may be eligible to take Pregnancy Disability Leave and would also be eligible for 12 weeks of CFRA leave available for baby-bonding and/or any other CFRA-qualifying purpose.

We have several employees who are currently working remotely but are affected by the school closures. Are we required to automatically provide these employees with the new FFCRA leave?

An employer is not required to provide FFCRA leave automatically, but rather the leave must be provided upon request. If employees are unable to work (or telework) because of school closures, the employees should request FFCRA leave.

Keep in mind that employees are only eligible for both the EPSLA leave and the EFMLEA leave if they are unable to work or telework due to a need to care for the employee’s child if the child’s school or daycare is closed, or the child care provider of the child is unavailable, for reasons related to COVID–19. Employers may ask employee to certify in writing that that no other “suitable” caretaker is available, such as a co-parent, co-guardian or the usual childcare provider before granting this leave request as documentation to obtain the corresponding tax credit.

Our company uses the rolling calendar method to determine the amount of FMLA leave employees have available. We have an employee who used most of her FMLA leave entitlement for the year and currently has only three weeks available to her. The 12-month rolling period for this employee begins again in mid-May. May the employee use more EFMLEA once the rolling year starts anew?

Yes. When the employee becomes eligible for more FMLA time when the 12-month FMLA rolling period restarts, the employee would be permitted to use some of that time as EFMLEA leave. However, the employee’s ability to use EFMLEA leave at that time (i.e. in mid-May) may be limited in two ways.

First, the time off would need to be for a purpose that qualifies for EFMLEA leave (i.e. school/daycare closure). In other words, the employee would be able to take EFMLEA leave through the scheduled “last day of school” for a child’s school district. However, once “summer break” starts on the school calendar, the employee would likely not be able to cite “school closure” as the reason for EFMLEA leave. Instead, the employee could only continue to take EFMLEA leave if the employee’s childcare provider continued to remain closed due to COVID-19 related reasons

Second, the total amount of EFMLEA leave an employee can take is 12 weeks. This means that if the employee currently has three weeks of FMLA leave available, the employee can use those three weeks as EFMLEA and then, when the FMLA rolling period restarts, the employee would have nine weeks of EFMLEA leave available (out of the 12 weeks of FMLA).

If you would like to review additional frequently asked questions we have received from our clients, please click here.