The CARES Act Information
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.)
Here is some useful information in a fact sheet from the ADA and ADCPA.
Closing the office or cutting back to emergency-treatment only
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.
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.
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
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.
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.
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.
HR6201: Sick Leave & Paid Family Leave
New information: 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.
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.
- 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:
- Subject to federal, state, or local quarantine, or
- Advised by a healthcare provider to self-quarantine, or
- Experiencing symptoms and seeking diagnosis, or
- Caring for an individual who is subject to federal, state, or local quarantine, or
- Caring for son(s) or daughter(s) if school/child care facility is closed or child care provider unavailable, or
- 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]
My business has to close and/or reduce hours. Do we have to pay employees?
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.
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.
Pay may be docked for any and all non-work time.
If we close the business temporarily, can employees file for unemployment insurance?
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.
How does health insurance work if we close the business temporarily?
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.
Can the use of paid time off benefits (vacation, PTO, sick time) be used when an employee is off work?
In general, yes, employees may substitute any paid time off benefits for unpaid time, as applicable for each employee.
If employees have available Sick Leave, PTO, or Vacation, are we required to let employees use that time if they are off?
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.
Can the employer require the use of paid time off benefits (vacation, PTO, sick time) when an employee is off work due to circumstances surrounding the Coronavirus, whether initiated by the employee or the employer?
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.
What if an employee comes to work sick? Can employees be sent home? Do I have to pay them for the day?
Nothing prevents an employer from sending an employee home who is sick at any time. Pay requirements will differ between exempt and non-exempt employees.
Non-exempt employees only have to be paid for time actually worked. Thus, if a non-exempt employee only worked 6 hours and was then sent home, then only 6 hours of pay is required. The one caveat to this is if a state requires “reporting time pay.”
Currently these states are: California, New Hampshire, New Jersey, New York, Rhode Island, and Massachusetts. In these states, additional pay may be required depending on when the employee is sent home. Please read the “Reporting Time Pay” policy in your policy manual for more information.
Exempt employees must be paid for the full day even if they are sent home early.
What if the local schools close and my employees claim that they need to take time off because of a lack of childcare?
This is a very unprecedented event that will affect thousands of people in the area. Any childcare facilities that remain open will be inundated and quickly overwhelmed. This will likely impact all employers in the area in one way or another. In light of this, a certain amount of patience, support, and understanding is likely warranted from employers. You can encourage employees to seek childcare options, so the business is minimally affected. However, taking disciplinary action against an employee because of this may not be the best strategy.
Also, if you are governed by a mandatory sick leave rule or family leave benefit, remember that caring for one’s children may be protected usage for sick leave or family leave. Therefore, these situations need to be handled carefully.
Can employees refuse to come to work?
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.
Can I require a doctor’s note before a sick employee can return to work?
A doctor’s note should not be a prerequisite for returning to work, according to the CDC.
This is in part because this requirement would place a high burden on the healthcare system, and healthcare provider offices and medical facilities may not be able to provide documentation in a timely fashion.
Though the CDC’s guidance urges against requiring a return-to-work note, if the employee’s illness is a “serious health condition” under the FMLA (applicable to employers with 50+ employees within a 75-mile radius), the employer would be able to require a return-to-work note if the employer complies with the FMLA’s guidelines for requiring such documentation, including, among others, notifying the employee in the initial determination that fitness-for-duty notes will be required and consistently applying the requirement to all FMLA leaves.
Can I require a medical exam before a sick employee can return to work?
The Americans with Disabilities Act (ADA) strictly limits when an employer can request an employee to submit to a medical exam. The ADA prohibits employers from requiring medical examinations and making disability-related inquiries unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.
In this circumstance, if the employer believed the employee posed a “direct threat” to the workplace because of the medical condition, then a submission to a medical exam may be legal. In assessing whether an employee poses a “direct threat,” the employer must base that judgment on the most current medical knowledge and/or best objective evidence.
The employer may specify the healthcare professional that the employer chooses, but the healthcare professional should have expertise in the employee’s medical condition. Moreover, the employer must pay the cost of the medical exam. If the employee is covered by the employer’s health insurance, then the employer need only pay for any out-of-pocket cost not paid by the health insurance plan.
Can I take an employee’s temperature at work to determine whether they might be infected?
The Americans with Disabilities Act (ADA) places restrictions on the inquiries that an employer can make into an employee’s medical status, and the Equal Employment Opportunity Commission (EEOC) considers taking an employee’s temperature to be a “medical examination” under the ADA. See above regarding the restrictions on medical exams.
Taking an employee’s temperature may be unlawful if is not job-related and consistent with business necessity. The inquiry and evaluation into whether taking a temperature is job-related and consistent with business necessity is fact-specific and will vary among employers and situations. You should exercise caution before relying on media reports in an attempt to justify the taking of temperatures of your employees without objective evidence that there is an actual threat to your business. Moreover, as a practical matter, an employee may be infected with the COVID-19 coronavirus without exhibiting recognized symptoms such as a fever, so temperature checks may not be the most effective method for protecting your workforce.
Can I count absences related to the Coronavirus against the employee’s attendance record and possibly terminate as a result?
One of the main reasons that employers may want to refrain from disciplining employees under these circumstances is the large number of employees whose attendance records will be adversely impacted. Having a large percentage of the workforce subject to termination because of attendance issues would be extremely disruptive to an employer’s continued business operations and would have a negative effect on employee relations. Additionally, applying discipline for taking time away from work because of Coronavirus might encourage employees who already have attendance issues not to reveal their Coronavirus symptoms rather than risk termination.
There are many laws that can come into play in this kind of situation, so caution should be exercised when deciding whether or not to terminate an employee.
While an employer can certainly exercise his/her prerogative to terminate an employee, it may result in significant liability due to the certain protections. If the employer did terminate employment, it must be based on a legitimate and non-discriminatory reason in which business necessity could be proven.
May I send an asymptomatic employee home for “self-quarantine” if the employee has been in close contact with a person (e.g. family, friend) who has Coronavirus?
Yes, if the asymptomatic employee fits within certain categories established by the CDC’s guidance (last updated on March 7, 2020), which categorizes employees based on (a) symptoms (i.e., symptomatic or asymptomatic) and (b) risk (i.e., High, Medium, Low, or No Identifiable, which takes into account both (1) travel destinations and (2) level and type of contact with symptomatic individuals).
Under the CDC guidance, employees who are asymptomatic may be excluded from the workplace, if they:
- have close contact with,
- sat on an aircraft within 6 feet (two airline seats) of, or
- live in the same household as, are an intimate partner of, or are caring for at home, while consistently using recommended precautions [see here and here for home care and home isolation precautions],” for a symptomatic individual with laboratory-confirmed COVID-19.
CDC defines “symptomatic” as subjective or measured fever, cough, or difficulty breathing. CDC defines “close contact” as:
- a) being within approximately 6 feet (2 meters) of a COVID-19 case for a prolonged period of time; close contact can occur while caring for, living with, visiting, or sharing a healthcare waiting area or room with a COVID-19 case
– or –
- b) having direct contact with infectious secretions of a COVID-19 case (e.g., being coughed on).
There are different standards and CDC guidance for healthcare employees. Please use the link above under “Helpful Resources” to learn more.
My employee has recently traveled should I ask them to “self-quarantine” to protect our business?
Only if the employee falls into certain CDC risk categories (as explained in the answer above). Among the considerations for these risk categories is travel to certain areas with “widespread sustained” transmission (i.e., covered by a CDC Level 3 Travel Health Notice). As of March 8, 2020, those areas include China, Iran, South Korea, and Italy. There currently are no travel advisories related to travel inside the United States, but employers can closely monitor updates from the CDC and state and local public health authorities. The CDC has advised that determinations should not be made based on race or country of origin.
Here is a link for more information about travel from the CDC: https://www.cdc.gov/coronavirus/2019-ncov/travelers/index.html