The CDC has Expanded COVID-19 Close Contact Definition

The CDC released new guidance (updated guidance) on Wednesday regarding what counts as “close contact” with someone who has COVID-19. The expanded definition includes “someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.” Previously, the CDC defined close contact as spending 15 consecutive minutes or more within 6 feet of someone with COVID-19. Note: Maricopa County Department of Health defines close contact as within 6 feet for longer than 10 minutes.

This expanded definition means employers will have to adjust their close contact tracing protocol and revise any published written material that adopted the CDC’s previous definition.

Evolving COVID-19 Workplace Guidance

COVID-19 is creating unprecedented challenges for employers that are struggling to keep their businesses afloat while protecting the health and safety of their employees.  Staying abreast of the flurry of evolving pandemic paid leave laws and guidance issued by federal, state and local public health authorities can be daunting.  Over the last few months, we have provided updates to assist your organization navigate its legal obligations and will continue to do so.

This update summarizes recent guidance from the U.S. Department of Labor (DOL) on the application of the Families First Coronavirus Response Act (FFCRA) paid leave benefits to employees who miss work to care for children who are remote learning; DOL guidance on how to properly track work hours for teleworking employees; and requirements for AZ businesses that have returned employees to the workplace.

DOL Issues Guidance re Application of FFCRA Paid Leave Benefits to Remote Learning Situations

The FFCRA entitles employees to take up to 12 weeks of paid time off to care for a child due to school closure.  The DOL clarified that, for FFCRA purposes, a school closure applies when a school is physically closed, but is providing remote instruction to an employee’s child.  An employee is eligible for FFCRA paid leave benefits in this situation if the employee is needed to care for the child during the remote learning time.  However, FFCRA benefits are not available in situations when the child’s school offers students the option of live or remote learning and the employee chooses to keep his/her child home out of a fear the child may contract COVID-19.

DOL Issues Guidance re Employer’s Obligations to Track Teleworking Employees’ Hours of Work

Before the pandemic, some businesses offered employees teleworking as a discretionary and occasional benefit. Post-pandemic, teleworking has become the norm for most business, and likely will continue even after the pandemic subsides.  Therefore, it is important that employers set expectations with employees about the teleworking arrangement, preferably in a detailed teleworking agreement.  One topic that should be addressed is proper time-keeping procedures for non-exempt (hourly) employees to minimize the risk of a claim that the employee was not compensated for all hours worked.  The DOL has provided guidance on this topic.  This guidance reminds employers that, under existing federal law, employers must pay employees for all hours worked, whether performed in the office or away from the office.  Employers must count the time as hours worked if the employer knows or has reason to believe that the work is being performed, even if they did not authorize the work be done.  When employees telework, it becomes even more difficult for employers to keep tabs on employee work time.  According to the DOL,   employers can defeat a claim that they knew or should have known an employee was working “off the clock” by implementing a simple, user-friendly process for employees to report their scheduled and unscheduled work time and make it clear that employees will be compensated for all hours worked, even unscheduled hours.  According to the DOL, “if an employee fails to report unscheduled hours worked through such a procedure, the employer is generally not required to investigate further to uncover unreported hours.”

COVID-19 Guidance for AZ Businesses

As more and more businesses transition employees back to the workplace, it is advisable to refer to the Maricopa County Guidance for Businesses (attached) and the AZ Dep’t of Health’s (AZDH) list of “Requirements” (attached) for recommendations/directives on how to maintain a healthy workplace.  Pima County Health Standards for businesses can be found here (https://webcms.pima.gov/cms/One.aspx?portalId=169&pageId=577827).  The directives include:

  • Policies – Develop and implement policies that adopt guidance from the CDC and other public health authorities to mitigate the spread of COVID-19.
  • Social Distancing and Masks:  Implement and enforce physical distancing requirement of at least 6 feet between employees and/or customers.  For businesses where social distancing is not possible, masks are required.   Staff working in public places (such as public transit, restaurants and stores) must wear masks at all times.
  • Symptom Monitoring – The AZDH requires (and Maricopa County encourages) employers to implement symptom monitoring practices for all employees prior to the start of their shift that should include, when “possible,” temperature checks.
  • Quarantining – Require employees who tested positive for the virus or have COVID-19 symptoms to stay home and not return until they have met return to work criteria established by public health authorities.  Exceptions exist for employees deemed essential workers.
  • COVID-19 Testing – According to the County, “employers should NOT require a COVID-19 test result or a health care provider’s note for employees who are sick to validate their illness, to qualify for sick leave, or to return to work.”  The AZDH issued the same prohibition on testing, but gives employers the discretion to request a doctor note from an employee as a condition of returning to work.  Due to this conflicting guidance, you should consult with counsel before mandating a negative test result before an employee can return to work.

Please contact us if you need assistance implementing these requirements.

DOL Issues New FMLA Forms

The Department of Labor (DOL) has developed optional-use FMLA notice, designation and certification forms that can be found here:  https://www.dol.gov/agencies/whd/fmla/forms.  These forms are pdf-fillable and more clear than prior versions.  While employers may use their own forms (as long as they provide the same basic information and requirements as the DOL forms), we recommend the DOL forms be used to avoid any legal challenge to an alternative form.

*Note:  The FMLA only applies to the following employers:

  • Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
  • Public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or
  • Public or private elementary or secondary school, regardless of the number of employees it employs.

Supreme Court Declares Federal Law Protects LGBTQ Workers from Discrimination

Today, in a 6-3 decision authored by Justice Neil Gorsuch, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act protects gay, lesbian and transgender workers.  The landmark ruling will extend protections to millions of workers nationwide and represents an unequivocal rejection of the argument that Title VII that bars discrimination based on sex did not extend to claims of gender identity and sexual orientation.

The practical impact of this decision should be limited as many organizations have already adopted policies and practices banning discrimination on the basis of sexual orientation and gender identity.  However, to the extent your organization has not done so, it is prudent to update your EEO and anti-harassment/retaliation policies to expressly state that these polices extend to LGBTQ workers.  This should also be made explicit in your EEO training materials.

Emergency Coronaviurs Bill – What Employers Need to Know

On March 14, 2020, the U.S. House of Representatives passed the Families First Coronavirus Response Act (H.R. 6201). The bill now heads to the Senate where it is expected to pass sometime early next week.  The bill contains several provisions that will directly impact employers, including paid family medical leave and paid sick leave.

A summary of the leave provisions in their current form is set forth below.  More details can be found here:  https://appropriations.house.gov/sites/democrats.appropriations.house.gov/files/Families%20First%20summary.pdf

Paid Family Medical Leave

  • Applies to employers with less than 500 employees.  Employers with less than 50 employees can apply for a hardship exemption with the Secretary of Labor.
  • Provides 12 weeks of job-protected Family and Medical Leave Act (FMLA) leave for employees with at least 30-days seniority for COVID-19 related reasons.
  • The first 14 days of the leave may be unpaid.  Employees may use accrued personal or sick leave during the first 14 days, but employers may not require employees to do so.
  • After the first 14 days, employers must compensate employees in an amount that is not less than two-thirds of the employee’s average monthly earnings, up to a cap of $4,000.
  • Among other uses, employees may use the leave to respond to quarantine requirements or recommendations, to care for family members who are responding to quarantine requirements or recommendations, and to care for a child whose school has been closed as a result of the COVID-19 pandemic.
  • The benefit will go into effect within 15 days after enactment and expire one year after the bill’s enactment.

Paid Sick Leave

  • Applies to employers with fewer than 500 employees.
  • Provides 2 weeks of paid sick leave at the employee’s regular rate of pay for specific circumstances related to COVID-19 (e.g., illness, self-isolating, doctors’ visits).
  • Leave is paid at two-thirds of the employee’s regular rate if taken to care for a family member for a COVID-19 related reason, including to care for a child due to school/daycare closures.
  • Small employers (those with 50 employees or less) will be reimbursed for providing this benefit.
  • The provisions will go into effect immediately and expire on December 31, 2020.

The bill includes tax credit relief for employers equal to the full costs of the payments made by the employer to comply with the law.

Until the bill is passed by the Senate and signed by the President, the specific requirements are subject to change.   Therefore, we encourage your organization to wait until the bill is passed to issue communications to your staff about these benefits.  We will, of course, keep you updated as events unfold and provide compliance guidance once the bill is passed.