19 Mar BOP Newsletter Spring 2021
BOP NEWSLETTER • Spring 2021
An Update on the FFCRA
by Tim Twigg & Rebecca Boartfield
With the passage of the American Rescue Plan Stimulus package on March 11th, the question on every employer’s mind is: what’s going on with the FFCRA?
A brief summary and history of the FFCRA…
The Families First Coronavirus Response Act (FFCRA) was passed a year ago and went into effect April 1, 2020. It applied to all employers with fewer than 500 employees and provided mandatory, job-protected, paid leave to all employees for the following reasons:
- The employee is subject to a federal, state or local quarantine or isolation order related to COVID–19.
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
- The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
- The employee is caring for an individual who is subject to either number 1 or 2 above.
- The employee is caring for his or her child if the school or place of care of the child has been closed, or the child care provider of such child is unavailable, due to COVID–19 precautions.
- 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.
Paid leave was available in two ways: 1) Emergency Paid Sick Leave (EPSL), and 2) Emergency Family and Medical Leave Act (EFMLA).
Under EPSL, employees had up to 80 hours over a two-week period of paid leave, which could be used for any reason listed above. Under EFMLA, employees had up to 12 weeks of leave, which could only be used for reason #5 above. The first 2 weeks of EFMLA were unpaid, therefore, up to 10 weeks were paid.
When EPSL was used for reasons #1-3, it was paid at the employee’s regular rate of pay up to a cap of $511.00 per day. When EPSL was used for reasons #4-6, it was paid at 2/3rds the employee’s regular rate of pay up to a cap of $200.00 per day.
Paid leave under EFMLA was paid at 2/3rds the employee’s regular rate of pay up to a cap of $200.00 per day. Total EFMLA was capped at $10,000.00 in aggregate.
When an employee was off and FFCRA applied, the employer paid employees directly (just like any other type of compensation) and could then seek a 100% tax reimbursement. This came via a tax reduction on the employer’s payroll taxes. For example, if an employer’s payroll tax costs were $5,000.00 and the FFCRA wages totaled $2,000.00, then that cost got subtracted from the total and the employer paid what was left. In this case, it would be $3,000.00.
The FFCRA was set to expire on December 31, 2020. With the passage of the Consolidated Appropriations Act (CAA) of 2021 on December 27, 2020, the FFCRA was made voluntary and extended the tax credits through March 31, 2021.
Under the CAA, employers could elect to continue providing EPSL and/or EFMLA and, if they did, they got their tax credits. It did not reset the amount of paid leave available or make any further changes. Therefore, if employees had used up their EPSL and/or their EFMLA in 2020, they did not receive more on January 1, 2021. Any time off for reasons listed above would have needed to be covered by other employer benefits. For all others, their available time simply rolled over into 2021 and could be used if appropriate.
When President Biden took office, it was very clear from the get-go that a new stimulus package was coming, and it was widely assumed there would be something in it regarding the FFCRA. Those assumptions were right!
The American Rescue Plan Stimulus package…
The American Rescue Plan, in terms of the FFCRA, effectively begins April 1, 2021 and goes through September 30, 2021.
Unlike the CAA, the American Rescue Plan does make changes to the FFCRA, but let’s start with three important aspects that have not changed:
- It is still voluntary.
- 100% tax reimbursement is still available.
- Only applicable to employers with fewer than 500 employees.
All other aspects of what has been described above also remain the same. Here’s what been added or changed:
1. Adds additional reasons for being able to take leave under the FFCRA. These include the following:
- Obtaining a COVID-19 vaccine
- Recovering from any illness or condition related to the COVID-19 vaccine
- Seeking or awaiting the results of a COVID-19 diagnosis or test if either the employee has been exposed to COVID-19 or the employer requested the test or diagnosis
*Note: this is paid at the employee’s regular rate of pay up to a cap of $511.00 per day.
2. Resets EPSL as of April 1, 2021. Therefore, employees are eligible for a new set of up to 80 hours over a two-week period even if they used all that time previous to March 31, 2021.
3. Expands EFMLA to include all the reasons that EPSL can be taken. In other words, EFMLA, which previously only applied to reason #5, now includes all 6 reasons listed at the start of this article and the 3 new ones added by the rescue plan.
4. Removes the unpaid portion of EFMLA. All 12 weeks are now paid. This also increases the total wage cap to $12,000.00 in aggregate.
*Note: all leave under EFMLA is paid at 2/3rds the employee’s regular rate of pay up to a cap of $200.00 per day.
*Note: EFMLA does not appear to have been reset as of April 1, 2021. Therefore, EFMLA is only available if employees have never used EFMLA or did not use all available 12 weeks previously. Also, for employers subject to normal FMLA (those with 50+ employees), any leave taken under EFMLA and/or FMLA count against any EFMLA available now.
5. Adds non-discrimination rules. Tax credits will not be available if employers limit leave under the FFCRA to only certain employees such as full-time, highly-compensated, or employees with certain amount of tenure. This means that if an employer chooses to offer additional EPSL or EFMLA, it must offer the leave to all employees — including part-time employees and newly hired employees.
*Note: it would appear that employers could choose to offer only EPSL or only EFMLA instead of offering both. The non-discrimination rules would then apply to the types of leave being offered. In other words, you can exclude everyone from EFMLA, but, if you choose to offer it, then it must apply to all employees.
What to do now…
First, make a decision. Will you offer leave under the FFCRA at all? Whatever you choose, you should decide soon and make a formal announcement to your employees, even if you’re not voluntarily providing FFCRA now. Employees will likely hear about this from other sources, so it is best to set the record straight immediately so as to avoid confusion later.
Second, if you’re going to offer EPSL or EFMLA or both and you’re one of our clients, reach out to us for a new policy and new FFCRA forms. You will want to provide the new policy to your employees so that they understand what’s available to them. Then, if someone takes FFCRA leave, you will need to use the new forms in order to ensure you can document and receive your tax credits.
Third, if you’re going to offer EPSL or EFMLA or both, be sure to administer it exactly as required. Though this is voluntary, all the rules apply for administration purposes.
Fourth, if you’re not going to provide leave under FFCRA, be sure your employees know how time off will be handled if they have an issue related to COVID-19. This can include any of the following:
- It may be unpaid.
- It may be paid using any applicable benefit provided such as sick leave or vacation or paid time off.
- It may be paid under other state law mandates such as New York’s COVID-19 Sick Leave, or Colorado’s Public Health Emergency Leave or other state rules that may apply to you.
- It may be covered by unemployment insurance benefits.
Why not offer some portion of the FFCRA? With the 100% tax reimbursement portion of the FFCRA, it is nearly a cost-free benefit. How often is that the case? Employers have an opportunity to build some goodwill with employees and to do so with little to no harm done.
Right now, even though we’re starting to see a light at the end of the tunnel with this pandemic, we still have a long way to go. Employees could still be experiencing COVID-19 situations and need time off. Should it really mean they go without pay when their employer can provide a benefit that is 100% tax reimbursable?
Also, the way out of this is for as many people as possible to get vaccinated. What better way to support that then to offer leave under the FFCRA for vaccinations (and get reimbursed for doing so!)?
We see offering leave under the FFCRA as a win-win situation. We encourage you to see it that way too.
Q: We are planning to close our office for a week in the summer and then again next January. If we do that, can employees file for unemployment benefits during those planned weeks that the office will be closed?
A: Unless there is another avenue for employees to be paid for the time off, such as vacation or PTO or some other employer-provided benefit, then, yes, employees could file for unemployment benefits during those weeks you will be shutdown. This is true anytime employees are unable to work.
In both of these cases, the employees are unable to work due to no fault of their own, which would likely make them eligible during these weeks, assuming they met any other eligibility requirement (such as a waiting period) imposed by your state.
Q: Some of my employees have requested that the business supply Vitamin C onsite in order for them to take while at work. Should I do this? Please let me know the relevant considerations, and your recommendations on this.
A: In general, this is up to you whether or not you provide this to your employees, but you may want to avoid doing so. My caution stems from the risks associated with providing over-the-counter (OTC) medications to your employees, even though I know Vitamin C may be slightly different.
Providing OTC medications to employees may expose an employer to liability or may even violate certain state laws, so caution is advised.
While an aspirin, for example, may allow an employee with a headache to continue working and maintain productivity, even OTC medications have health risks and side effects that can be serious or even fatal. Also, some medications can cause drowsiness and result in a workplace accident.
Employers may suggest that employees take responsibility for their own OTC medications. This type of policy encourages employees to keep the one or two OTC medications they use at home in a locked desk or locker for times when they may need the medication. This option relieves the employer of any responsibility or liability for supplying medications.
Another option is for employers to add one or two basic OTC medications to first-aid kits available to employees. If employers choose to include OTC medications in a first-aid kit, it is imperative that the employer provide only single-dose packages that are properly labeled as regulated by the Food and Drug Administration, including a tamper-evident package. Employers should not offer any product that contains ingredients that are known to cause drowsiness. With proper labeling, employees are then able to self-select if available OTC medications are right for them.
When making a decision to include OTC medications in first aid kits, employers should check the OSHA regulations first as some states do not allow this at all.
Whether or not vitamins are part of this is up to you. Vitamins are already not regulated by the FDA. According to the Mayo Clinic, too much Vitamin C can cause side effects, including:
- Nausea, vomiting and diarrhea
- Stomach cramps or bloating
- Fatigue and sleepiness, or sometimes insomnia
- Skin flushing
In some people, oral vitamin C supplements can cause kidney stones, especially when taken in high doses. Long-term use of oral vitamin C supplements over 2,000 milligrams a day increases the risk of significant side effects.
It may be best to have a practice of not providing OTC medications or vitamins across the board to keep you and your business safe.
Q: One of our Dental Hygienists is pregnant. She just let us know. We do not want her using Nitrous Oxide with patients while she is pregnant. Is there a form we need to use to confirm this with her?
A: While I can appreciate your concern and sentiment, I don’t recommend making this decision unilaterally for her. Treating a pregnant employee differently, even when the concern is meant as a caring gesture, can result in issues of discrimination. She may not see this issue the same way or agree with it and if her job is suddenly changed without her consent, it can create problems in terms of conflict or discrimination claims.
Instead, I would encourage you to talk with her about the issue and concern. Express that you only want what’s best for her and her baby and that you’re willing to make an adjustment to her work duties if that’s what she and/or her treating physician believe is best for the duration of her pregnancy, but the decision is hers to make. See how she responds.
If she agrees to not work with Nitrous, you can simply make that accommodation and move forward. There is no required paperwork that she would need to sign if you’re simply willing to make the adjustment. You can just make a note of the conversation and the accommodation for your files. Of course, you’d want to ensure everyone understands what this accommodation means in terms of her managing her job duties going forward.
If you’d like “proof,” so-to-speak, of her need to have this accommodation, then you may ask for her to provide certification documentation from her treating physician.
If she’d rather move forward and not have an accommodation, then you will need to allow it. In this case, you could document that you spoke with her about your Nitrous concerns and offered to make adjustments to her work duties, which she denied. This could be put into a memo and signed by all parties.
Q: I have an employee who will often roll her eyes or have adverse body language when a Supervisor is trying to communicate areas that need improvement. For example, this employee recently did not perform a required task. When approached about the issue, the Supervisor was met with eyerolls. What can I do about this? How do I address this?
A: Of course, this type of behavior does not have to be tolerated. It is unprofessional, disrespectful, and can impact someone’s overall performance standings with the employer. As such, it can definitely be addressed.
In terms of addressing this initially, you could issue a verbal or written warning. This can happen on two levels: 1) the task wasn’t done, and 2) body language during the conversation with the Supervisor who was providing constructive feedback. For the body language, you might say something like this:
“When __________ was constructively discussing the fact that you did not complete an assigned task, as mentioned, ___________witnessed you rolling your eyes at her while she was talking to you. The act of rolling your eyes during a conversation is disrespectful and not appropriate. This also signals that you were not taking the feedback seriously. We expect your non-verbal communication to be managed at all times such that it is respectful to everyone, but especially when your Supervisor is providing feedback on your performance.”
If the behavior continues beyond this, then you may have to consider taking further measures to correct this and it may lead to termination if it is not stopped.
New York State Employers Must Provide Paid Leave for COVID-19 Vaccination purposes?
The new legislation, which is effective immediately and sunsets on December 31, 2022, provides the following:
- All New York employees must receive a paid leave of absence for “a sufficient period of time” not to exceed four hours per vaccine injection. In other words, employees may be entitled to up to eight hours of paid time off if receiving a two-injection COVID-19 vaccine.
- This leave must be paid at the employee’s regular rate of pay.
- Employers cannot require employees to use other available leave (such as sick leave or vacation time) before providing this leave.
Furthermore, the new law prohibits discrimination or retaliation against any employee who exercises their rights under the law, is silent as to any retroactive effect, if any, and does not provide any information as to the types of documentation employers can request from employees seeking this leave.
New Jersey Protects Off-Duty Recreational Marijuana Use?
Governor Phil Murphy has signed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act. Once fully in place, New Jersey will be the first state in the nation to protect employees from almost any adverse employment action triggered by off-duty recreational marijuana activity.
The new law continues certain fundamental employer prerogatives and rights, such as:
- Does not require employers to permit employees to use or possess marijuana or marijuana products during work hours or to work while under the influence.
- It is not intended to allow driving under the influence of, or impaired by, cannabis or cannabis products, or supersede marijuana DUI/impairment laws.
- Does not restrict or preempt legal obligations to maintain a “drug-free workplace” (laws prohibiting illegal activity in the workplace, but not mandating testing) and employers may be able to test if compliance would lead to a “provable adverse impact” under “requirements of a federal contract.”
Although testing is not prohibited, employers cannot refuse to hire any person or take adverse action against an employee solely because they use or test positive for cannabis. Further, New Jersey will permit adverse action following a positive test only if the employer’s testing program uses scientifically valid methods and a Certified Workplace Impairment Recognition Expert has deemed the individual to be impaired.
It is No Longer Legal to Round Meal and Rest Periods in California?
On February 25, 2021, in Donohue v. AMN Services, LLC, S253677, the California Supreme Court held that rounding time at the meal period is not proper. This ruling concluded that an employer’s rounding up of a shortened meal period through a clock mechanism effectually deprived employees of premium pay which could not be reconciled against additional minutes even when rounding resulted in additional compensation for time off.
As a result, employers should ensure that any clocked meal or rest periods are accurately measured. California employers who wish to use rounding practices for meal period calculations should immediately seek legal advice in light of this opinion.
Colorado Clarified the Public Health Emergency Leave Requirement for New Hires and Part-Time Employees?
On February 23, 2021, the Colorado Department of Labor and Employment (CDLE) issued revisions to the Wage Protection Rules relating to Colorado employers paid sick leave obligations under the Healthy Families and Workplaces Act (HFWA). While the CDLE only made a handful of changes, they are nonetheless important, particularly with respect to the obligation to provide public health emergency leave (PHEL).
First, the rules make clear that the amount of PHEL to which part-time employees are entitled is tied to when the employee requests PHEL. Full-time employees (employees who work at least 40 hours per week) are entitled to 80 hours of PHEL under the law, but it was previously unclear what amount of PHEL employers needed to provide to part-time employees. The statute’s text and the prior version of the rules provided that such employees were entitled to leave equal to the amount they work in a 14-day period, but it was unclear to which actual 14-day period this language referred. The rules now provide that part-time employees receive PHEL in “the greater of the number of hours the employee (a) is scheduled for work or paid leave in the 14-day period after the leave request, or (b) actually worked in the 14-day period prior to the declaration of the public health emergency or the leave request, whichever is later.”
The second change makes clear that employees who are hired during a public health emergency are entitled to PHEL, regardless of their date of hire.
These rules do not officially take effect until April 14, 2021, but employers can/should rely on them immediately since the modifications to the rules “clarify, but do not change, substantive rights or responsibilities” under the law.
Permanent COVID-19 Standard Adopted
Governor Ralph Northam approved the final permanent standard on January 27, 2021 for preventing COVID-19 in the workplace. This applies to all employers in Virginia. It supersedes the previous temporary standard that expired on January 26, 2021.
The new requirement mostly mirrors the previous one which requires employers to implement measures to help slow the transmission of, and protect workers from, COVID-19.
A few changes:
- Relaxes reporting obligation. Employers are now required to report to the Virginia Department of Health when two or more of its employees test positive for COVID-19 within a 14-day period.
- Modifies the return-to-work requirements for infected employees. Removes the test-based approach, meaning that employers should not require a negative COVID-19 test as a condition of returning to work. Instead, employers must rely on a symptom-based standard that is consistent with current guidance from the Centers for Disease Control & Prevention (CDC).
- A “face covering” must be worn over the nose and mouth and fit snuggly under the chin, and cannot have exhalation valves or vents.
- Clarifies that a face shield does not qualify as a “face covering.” If a face covering cannot be worn due to a medical condition, an employee must wear one of two types of face shields.
- Requires employers with hazards or job tasks classified in the “very high,” “high,” or “medium” risk categories to implement enhanced ventilation controls for air-handling systems that are under their control, such as increasing airflow to occupied spaces (provided that it does not create a greater hazard), increasing air filtration, and using natural ventilation in ground transportation settings.
Increased protections for Pregnant Workers
Governor Doug Ducey signed into law House Bill (H.B.) 2045, which expands protections for pregnant workers under Arizona law and applies to employers with 15 or more employees. The measure amends the Arizona Civil Rights Act (ACRA) to mirror existing protections under the federal Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964. Arizona legislators passed H.B. 2045 because the ACRA did not previously contain express protections for pregnancy and related conditions. To address the gap between state and federal law, Arizona legislators amended the ACRA to allow the Arizona Attorney General’s Office to investigate and enforce these protections under state law. With the governor’s signature, Arizona joins at least 27 states that have enacted laws specifically prohibiting discrimination against pregnant employees.
A New Jersey Court Ruled that Employee Complaints Concerning COVID-19 Measures May Be Protected Whistleblower Activity.
In Loeb v. Vantage Custom Classics Inc., the New Jersey Superior Court of Essex County ruled that a plaintiff could proceed with a lawsuit against his former employer under the New Jersey Conscientious Employee Protection Act (CEPA). This lawsuit is in regards to Loeb’s alleged termination in retaliation for expressing concerns about worker safety and seeking to implement various COVID-19-related safety protocols and measures.
CEPA, New Jersey’s whistleblower protection law, prohibits all New Jersey employers from retaliating against employees who disclose, object to, or refuse to participate in actions that the employee reasonably believes are illegal or in violation of public policy. The New Jersey courts have interpreted “public policy” broadly. In Loeb, the court concluded that the various COVID-19 guidelines issued by New Jersey Gov. Phil Murphy, OSHA, and the CDC were a sufficient basis for the plaintiff to base his CEPA claim.
This opinion suggests CEPA may protect employees who complain to employers about feeling unsafe at work due to COVID-19 from retaliation, such as discipline or termination, even if those complaints were made at the very beginning of the pandemic. Employers should be mindful of the COVID-19-related safety protocols they implement and take care not to retaliate against employees who do not feel safe in the workplace due to COVID-19.
Connecticut Enacts Banning Discrimination Based on Ethnic Traits.
On March 4, 2021, Governor Ned Lamont signed legislation prohibiting discrimination on the basis of ethnic traits historically associated with race. The “Creating a Respectful and Open World for Natural Hair,” also known as the CROWN Act (Bill No. 6515), amends the definition of race in the state’s anti-discrimination laws to be “inclusive of ethnic traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”
The CROWN Act is effective immediately. It is now an unlawful employment practice to discriminate against employees and applicants on the basis of ethnic traits, such as protective hairstyles. The term “protective hairstyles” is defined as “wigs, headwraps and hairstyles such as individual braids, cornrows, locs, twists, Bantu knots, afros and afro puffs.” The law does not limit the definition of “ethnic traits” to hairstyles.