As the World deals with the novel Coronavirus (also known as COVID-19), Kentucky employers and employees are facing an unprecedented amount of uncertainty. Our goal with this post is to provide basic information on the issues affecting businesses and employees in the Bluegrass. This includes the latest business guidance from the CDC, an overview of the recently passed Families First Coronavirus Act, and where to apply for unemployment insurance.
As time permits, we will add information that we think might be useful to this page, so check back often. Also, you know the drill on these things – this is not meant to be legal advice and should not be relied upon as such. If you have questions about a specific situation consult with your local, friendly employment attorney.
Families First Coronavirus Act (updated 3/21/2020)
- The new law, passed March 18, 2020, creates new paid leave benefit called “emergency paid leave.” It also expands FMLA to provide “public health emergency leave.” Both go into effect 15 days after being signed into law (April 2, 2020) and expire on December 31, 2020.
- Further guidance from the Department of Labor in the form of employer-required notices that must be posted in the workplace and regulations are expected to be released in the coming week.
- The DOL Secretary has carved out authority to exempt from the law employers with less than 50 employees if the act would jeopardize a business’s viability. We don’t know if or how this will manifest, so stay tuned on that. This evidences the fluid nature of this legislation and situation.
Emergency Paid Leave (“EPL”) under the Families First Coronavirus Act
- Covered employers: Applies to all employers with less than 500 employees, and all government employers, regardless of size.
- Covered employees: Applies to all employees at a covered employer, regardless of how long they’ve worked there.
- Benefit: covered employers are required to provide up to 80 hours of paid leave for full-time covered employees.
-The law does not define “full-time.”
– Part-time employees are entitled to the number of hours they work on average during a two-week period.
– Employers must allow employees to use EPL prior to using any other paid leave they may have (i.e., paid sick leave, paid vacation, etc.) Employees can use EPL for the ten days of unpaid Expanded FMLA (assuming they are covered), before switching to paid leave under the Expanded FMLA (see below).
- Qualifying conditions: (1) employee is subject to a federal, states or local isolation or quarantine order (2) employee has been advised by healthcare provider to self quarantine (3) The employee is experiencing symptoms of coronavirus and seeking a medical diagnosis for the symptoms (4) employees caring for someone who is subject to a quarantine order or who has been advised to quarantine by healthcare provider; or (5) employee is caring for a child because the child school or place of care is been closed due to coronavirus.
- Rate of Pay: regular rate if leave is to treat their own Coronavirus health issues or if they are subject to a quarantine or isolation order. For any other qualifying reason, pay is 2/3 of regular rate.
- Pay caps: $511 per day and $5,110 aggregate if leave is to treat employee’s own Coronavirus health issues or subject to quarantine order. For any other qualifying reason, paid leave capped at $200 per day and $2k aggregate.
Expanded FMLA under the Families First Coronavirus Act
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Law expands qualifying events for FMLA to include employees who cannot work (includes telework) because child’s school or place of care has shut down because of a declared emergency by federal, state or local government.
- Covered employers: Applies to all private employers with fewer than 500 employees, and to all government employers regardless of size.
- Eligibility: employee must have worked for employer for at least 30 days. It does not appear that these 30 days must be consecutive.
- Benefit: Qualifying employees get up to 12 weeks of leave. Initial 10 days are unpaid, but employee can use other accrued paid leave (if available) simultaneously. After ten days, employee is entitled to 2/3 of normal wage for number of hours he or she would regularly be scheduled to work.
- Pay caps: Maximum benefit is $200 per day and $10,000 in the aggregate.
- Restoration to position: Employees are generally entitled to be returned to their previous position after FMLA leave. However, if employer has less than 25 employees, then employee must be restored to their previous position after leave is exhausted unless economic conditions or other conditions caused by Coronavirus resulted in the position no longer existing. Even if position no longer exists, employer still has to make reasonable efforts to return employee to comparable position.
Department of Labor FAQ’s regarding Families First Coronavirus Act (Updated 3/30/2020)
- The latest update to the FAQ’s from the DOL can be found here
- What should businesses with less than 50 employees do if providing Expanded FMLA or Emergency Paid Leave would jeopardize the company as a going concern? The DOL advises to document the reasons for hardship based on the criteria from the department. The DOL further states that additional clarification will be provided in the forthcoming regulations. *NOTE* Do not send any documents to the DOL!
- Qualifying reasons for a business’s viability as a going concern being jeopardized:
- 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.
- If an employee has already taken 12 weeks of FMLA in the past 12 months, do they get 12 more weeks of leave under the Expanded FMLA? The DOL says no.
- Who is an emergency provider? For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19. To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.
- There are currently 59 FAQ’s, so check out the link above for the entire list.
Guidance from the CDC (Updated 3/21/2020)
The CDC is providing a wide array of resources for employers and employees. These resources are being continually updated by the CDC.
- COVID-19 symptoms and Coronavirus self-checker: https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html
- Information on who is at the highest risk due to COVID-19 exposure: https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-complications.html
- CDC’s resources for employer best practices (i.e., sanitization and workstation cleaning): https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/businesses-employers.html
Where to apply for Unemployment Insurance in Kentucky (Updated 3/21/2020)
The Kentucky Unemployment Insurance Commission recently released an updated schedule directing people to apply for unemployment benefits on certain dates for the next two weeks, based on your last name. For the upcoming week (starting Sunday, 3/22/2020), A-D should apply on Sunday, E-H on Monday, I-L on Tuesday, M-P on Wednesday, Q-U on Thursday, and V-Z on Friday. If you missed your day, you should apply on Friday.
To apply for unemployment insurance online, go to: https://kcc.ky.gov/career/Pages/default.aspx
Or call (502) 876-0442.
Be patient. There is a surge of new unemployment insurance claims being filed, so keep trying if the site crashes or the line is busy.
ADA and Rehabilitation Act Issues (Updated 3/21/2020)
The EEOC has recently released guidance for employers on how to navigate the COVID-19 global pandemic with regards to the Americans with Disabilities Act (ADA) and the Rehabilitation Act. You can find the guidance here: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm
Here are the EEOC’s answers to frequently asked questions:
Q: How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?
A: During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
Q: When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?
A: Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
Q: Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19?
A: Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
Q: When employees return to work, does the ADA allow employers to require doctors’ notes certifying their fitness for duty?
A: Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
Q: If an employer is hiring, may it screen applicants for symptoms of COVID-19?
A: Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule applies whether or not the applicant has a disability.
STAY TUNED FOR MORE INFORMATION. WE WILL UPDATED THIS PAGE WITH MORE INFORMATION THAT WE THINK MIGHT BE USEFUL….