Employment Law Compliance Issues for Employers in Responding to COVID-19

Marjory RobertsonAssistant Vice President & Senior Counsel, Sun LifeJames SlotnickHead of Government Relations

This content is not to be considered legal advice. We recommend Clients speak with legal counsel specializing in labor and employment law to ensure your organization meets requirements.

World Health Organization Declared COVID-19 a Pandemic on March 11, 2020

CORONAVIRUSPANDEMIC

WHAT YOU NEED TO KNOW

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What will be covered• Federal CARES Act• New Federal Coronavirus Response Act• State Leave Responses to COVID-19• Americans with Disabilities –

Pandemic Guidance• Genetic Information Nondiscrimination

Act (GINA)• Age Discrimination & Disability

Discrimination

• Race/National Origin Discrimination• Occupational Safety and

Health Act (OSHA)• Family & Medical Leave Act • Employment at Will• Fair Labor Standards Act• Worker’s Compensation

Legal issues in addressing COVID-19

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Federal Coronavirus Aid, Relief, and Economic Security Act (CARES)

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Families First Coronavirus Response Act (FFCRA)

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CARES Act Recovery Rebates (Section 2201)

• $1,200 per individual ($2,400 for married filing jointly)

• $500 per child

• These amounts begin to phase out at $75,000 for single and $150,000 for married couples

• They completely phase out for individuals with AGI over $99,000 and $198,000 for married couples

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CARES Act Paycheck Protection Program (Section 1102)• $350 Billion in potential loans

• Available to “small business concerns” and employers with fewer than 500 employees

• Provides loans equal to 2.5 average monthly payroll costs

• Payroll costs = wages + vacation/sick/medical/family/parental leave + severance + “payment for the provision of group health care benefits including insurance premiums” + retirement benefits + state and local taxes

• Can be used for payroll costs, utilities, insurance premiums, mortgage interest, interest on certain outstanding loans

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CARES Act Paycheck Protection Program• Loan Forgiveness

• Use loans for allowable reasons• Maintain number of employees by comparing:

• The average number of full time equivalents per month from 2/15/19 through 6/30/19 OR• The average number of full time equivalents per month from 1/1/20 through 2/29/20• To….• The average number of full time equivalent employees per month from 2/15/20 through

6/30/20

• Maintain 75% of employee wages

• Loan application can be found here.

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Emergency Relief Related to Coronavirus: • Signed into law by President Trump on 3/18/2020• Effective on 4/1/2020• 4 sections related to Employment Law issues⎻ Division C – Emergency FMLA Expansion Act⎻ Division D – Emergency Unemployment Insurance Stabilization &

Access Act⎻ Division E – Emergency Paid Sick Leave Act⎻ Division G – Tax Credits for Paid Sick leave and PFML

• Tax credit for full amount of leave (subject to cap) and cost of health insurance during leave

• Employment provisions sunset on 12/31/2020

Families First Coronavirus Response Act (FFCRA)

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Department of Labor Guidance On FFCRA

• DOL Temporary Rule issued 4/1/20 (124 pages)• https://www.dol.gov/agencies/whd/ffcra

• DOL Guidance (Issued 3/24 and updated 3/28/20) (59 FAQ)• https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

• DOL Fact Sheet for Employees• https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave

• DOL Fact Sheet for Employers• https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave

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DOL Temporary Rule & Guidance

• Calculating Number of EEs• Count all full and part time EEs at time of the leave Includes EEs on leave (but not furloughed EEs) Includes temporary EEs (even if employed by agency)

• Joint Employers and Integrated Employers• FEIN number ordinarily indicates separate employer• But if separate corporations are “integrated” you count employees of both

organizations• FMLA has integrated employer test: common management; interrelation between operations; centralized control of labor relations; and degree of common ownership/financial control

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FFCRA: Emergency Paid Sick Leave

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• Applies only to ERs with fewer than 500 EEs & certain public ERs (any size)• ER must provide to all EEs the following number of hours of Paid Sick Time

(PST) for uses set forth on next slide:– Full-time EEs: 80 hours – Part-time EEs: Number of hours equal to number of hours EE works on average over a

2-week period

• Rate of Pay for EE’s own illness/circumstances: The greater of EE’s regular rate of pay under FLSA, federal minimum wage, or applicable state minimum wage:– Cap: $511 per day and $5,110 in aggregate

• Rate of Pay for caregiving: Two-thirds of EE’s regular rate of pay under FLSA– Cap: $200 per day and $2,000 in aggregate

ERs can exceed rate of pay BUT tax credits only applies up to Caps

Emergency Paid Sick Leave

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Emergency Paid Sick LeaveApplicable Paid Sick Leave Uses:• To the extent EE is unable to work (or telework) due to need for leave because: • EE is subject to federal, state or local quarantine or isolation order related to COVID-19.• EE has been advised by healthcare provider (HCP) to self-quarantine due to COVID-19.• EE is experiencing symptoms of COVID-19 and is seeking medical diagnosis.• EE is caring for individual who is subject to federal, state or local quarantine or isolation

order related to COVID-19 or has been advised by HCP to self-quarantine.• EE is caring for son or daughter of EE if school or place of care is closed or is unavailable

due to COVID-19 precautions.• EE is experiencing any other substantially similar condition specified by Federal

Government.BUT ER of EE who is a healthcare provider or emergency responder

may elect to not provide Paid Sick Time to that individual14

Definitions & Guidance: Paid Sick Leave• Who is an individual that an EE can take Paid Sick Leave to care for?

• An EE’s immediate family member, a person who resides w/EE, or a “similar person with whom EE has relationship that creates an expectation that EE would care for person if quarantined.

• Definition of full time/part time• Full time: EE who is normally scheduled to work 40 or more hours per week• Part time: EE who is normally scheduled to work less than 40 hours per week

• Calculating Number of Hours for Part Time or variable hour EEs• Average number of hours over two-week period• If variable hours, use a 6-month average• If not employed 6 months, use # of hours that ER and EE agreed EE would work upon

hiring• If no agreement, use # of hours EE was scheduled to work over entire term of

employment

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• Federal Emergency Paid Sick leave is in addition to paid sick leave available under: Federal, state or local law Collective bargaining agreement or ER policy

• ERs with existing policies ER may not change its paid leave policies on or after date Act is enacted to avoid having to pay

• Immediate use: Paid Sick Leave is available for immediate use (no accrual)• Sequencing:⎻ EE may first use Paid Sick Leave under Act before other ER paid leave⎻ ER may not require EE to use other paid leave before EE uses Paid Sick Leave under Act

• Termination of Paid Sick Leave (One & Done?)⎻ Paid Sick Leave provided to EE under Act will cease beginning with EE’s next scheduled work shift

immediately following termination of need for Paid Sick Leave⎻ DOL guidance essentially ignores this: Says an EE can keep unused allotment if EE returns to

work and can use it through 12/31/20. • Carryover: Paid Sick leave will not carry over from 1 year to next

More on Emergency Paid Sick Leave

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FFCRA: Emergency Family & Medical Leave

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Emergency Paid FMLA• Applies only to ERs w/fewer than 500 EEs and certain public ERs (any size)• ER must provide up to 12 weeks of FMLA

First two weeks unpaid (but covered by 80 hours of PST)10 weeks paid

• EE eligibility: EE must have worked for ER for at least 30 consecutive calendar days before leave commences Includes time worked for ER as temporary EE through agency if then hired by ER

• Rate of pay: Two-thirds of EE’s regular rate of pay under Fair Labor Standards Act (FLSA)Cap: $200 per day and $10,000 in aggregate (ER can exceed but tax credit capped)

• Emergency Paid FMLA is part of overall FMLA 12-week allotment Not in addition to

• ERs of EE who is a HCP or an emergency responder may elect to not make this benefit available to that individual

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• Qualifying need related to a Public Health Emergency (PHE)⎻ EE is unable to work (or telework) due to need for leave: The Law says: To care for son or daughter under 18 years of age of EE

if school or place of care has been closed or is unavailable due to PHE DOL Guidance says: Son or daughter includes adult son or daughter

who (1) has a mental or physical disability and (2) is incapable of self-care because of that disability

• Public Health Emergency (PHE) means:⎻ An emergency relating to COVID-19 declared by federal, state or

local authority

Emergency Paid FMLA: Only one covered reason

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Interaction between Paid Sick Leave & FMLA• When Paid Sick Leave is to care for child whose school or place of

care is closed/unavailable, it will be counted against the 12 weeks of FMLA because this is also part of the expanded FMLA.

• But only if EE has worked for ER for at least 30 consecutive calendar days when leave is taken

• When Paid Sick Leave is for any of the other reasons it will NOTrun against the FMLA unless it meets the requirements of the FMLA at same time:

• EE has serious health condition• EE is caring for parent, child or spouse with serious health condition.

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Expanded FMLA & Job Protection• Job protection and job restoration provisions of FMLA apply.• ERs with fewer than 25 EEs can be exempted from job

protection if they show all of the following: Position EE held when leave began does not exist due to economic or

operational conditions that affect employment and are caused by COVID-19 public health emergency; and

ER makes reasonable efforts to restore EE to an equivalent position; and

If reasonable efforts fail, ER makes reasonable efforts to contact EE about equivalent job during the 1 year period beginning on earlier of (1) when need for COVID-19 leave ends or (2) 12 weeks after COVID-19 leave began.

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FFCRA: Applicable to Both Emergency Paid Sick Leave and Expanded FMLA

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DOL Temporary Rule & Guidance• Regular rate of pay looks back 6 months and includes:

• Overtime• Commissions, tips or piece wages

• Who is a child care provider?• Provider who receives compensation for providing child care services on regular

basis• Provider need not be licensed and can be family member, friend or neighbor.

• What is a school?• Elementary or secondary school

• Subject to a quarantine or isolation order includes:• Quarantine, isolation, containment, shelter-in-place, or stay-at-home orders or

advisories by Federal, State or local government authority that cause EE to be unable to work even though ER has work EE could perform.

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DOL Temporary Rule & Guidance

• Who is a health care provider who can provide advice to self-quarantine due to concerns related to COVID-19 for purposes of paid sick leave?

• A licensed doctor, nurse practitioner or other health care provider permitted to issue a certification for purposes of the FMLA.

• Nurses (other than nurse practitioners) are not FMLA authorized health care providers.

• What is telework?• EE is able to telework if: (1) ER has work for EE and permits EE to telework and (2)

there are no extenuating circumstances that prevent EE from performing work.• Intermittent leave is permitted if the EE and ER agree.• Paid Sick Leave and Expanded FMLA are not available to furloughed or laid

off employees or lack of work because business is closed.

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Who is a health care provider who can be excluded?

• Definition of health care provider who can be excluded by ER from benefits of COVID-19 PSL and expanded FMLA:• Anyone employed at any:

Doctor’s office Hospital Health care center Clinic Post-secondary educational institution offering health care instruction,

medical school Local health department or agency Nursing facility, retirement facility, nursing home Home health care provider Any facility that performs laboratory or medical testing, pharmacy Any similar institution, employer or entity

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Who is an emergency responder who can be excluded?• Definition of emergency responder who can be excluded by ER from

benefits of COVID-19 PSL and expanded FMLA:• An employee who is necessary for provision of transport, care, health care,

comfort, and nutrition of patients or who is otherwise needed to limit spread of COVID-19.

• This includes, but is not limited to: Military or National Guard Law enforcement officers Correction 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 Persons with skills or training in operating specialized equipment or doctor’s

office or other skills needed to provide aid in a declared emergency Individuals who work for facilities providing the above services and whose work is

necessary to maintain the operation of the facility. 26

Exemptions for ERs with Fewer than 50 EEs.• Special Exemption: Self-Determined by ER⎻ ERs with fewer than 50 EEs can exempt themselves when imposition of requirements

of expanded FMLA or of Paid Sick Leave when their child’s school or place of care is closed or unavailable due to COVID-19 if ER can show that complying would jeopardize viability of business as going concern

• ER must create and hold records that satisfy one of these exemptions:1. Provision of paid leave would result in ER’s expenses and financial obligations

exceeding available business revenues and cause ER to cease operating or2. Absence of EE or EEs requesting paid leave would cause substantial risk to financial

health or operational capabilities of ER because of specialized skills, knowledge of business or responsibilities or

3. There are not sufficient EEs who are able, willing and qualified and who will be available to perform services provided by EE or EEs requesting paid leave and services are needed for ER to operate at minimal capacity.

• ER Must still provide Paid Sick Leave for other reasons.27

Documentation that ER can require forPaid Sick Leave or Expanded FMLA

• EE must provide EE’s name, date of leave requested, qualifying reason for leave and oral or written statement that EE is unable to work because of qualified leave reason.

• Can require name of health care provider or name of Government entity issuing quarantine or isolation order

• Name of child being cared for, name of school or place of care that has closed or become unavailable and a representation that no other suitable person will be caring for child during period that EE takes paid sick leave or expanded FMLA

• Documentation ER may need for the tax credit• No other documentation is permitted

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Americans with Disabilities Act

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Americans with Disabilities Act (ADA/ADAAA)ER Obligations1. ERs may not make disability-related inquiry or require medical examination unless

inquiry/examination is job-related and consistent with business necessity. ⎻ “Disability-related inquiry” is focused on obtaining information about EE’s disability. ⎻ EEOC Guidance: Asking question about EE’s well-being (“how are you”/ “do you have

a cold?”) is not disability-related.2. ER may not discriminate against or exclude:⎻ EEs with disabilities⎻ EEs who are associated with person with a disability

3. ERs are required to provide reasonable accommodations for EEs with disabilities unless:⎻ Accommodation would impose an undue hardship;⎻ Accommodation would create direct threat to safety of themselves or others; or⎻ Accommodation would relieve EE of performing “essential job function”.

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• Under the ADA, “disability” includes: 1. Physical or mental impairment that substantially limits one or more

major life activities; 2. Record or history of such an impairment; or 3. Person who is perceived or regarded as having such an impairment,

even if they do not.

• Generally, temporary, non-chronic conditions of short duration with little or no permanent impacts are not disabilities. ⎻ Typically, the flu is not considered a disability unless there are complications.

What is a disability?

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EEOC Guidance on ADA & Pandemics

ERs May:• Send EEs home if they display influenza-like symptoms. • Ask EE who reports feeling ill at work/calls in sick whether EE is experiencing flu-like

symptoms. ⎻ ERs must maintain information received as confidential medical record.

• Measure EE’s body temperature. • Require EEs who have travelled to specific areas with COVID-19 outbreaks or who have

been exposed to someone with COVID-19 to remain at home until it is clear that they do not have COVID-19.

• Ask questions of an EE who returns to work after travel to an impacted area even if that EE is not currently showing symptoms.

• Ask an EE why he or she was absent from work if the ER suspects that it was for a medical reason.

In Pandemic, ERs can follow guidelines issued by Centers for Disease Control (CDC).

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EEOC Guidance on ADA & PandemicsERs May Also:• Encourage EEs to work from home. • Require EEs to adopt infection control practices such as:⎻ Regular hand-washing⎻ Coughing and sneezing etiquette and⎻ Proper tissue usage and disposal

• Require EEs to wear personal protective equipment (e.g., face masks, gloves or gowns).⎻ May have to accommodate EEs with disabilities (e.g., non-latex gloves)

• Require an EE who has been ill to provide doctor’s note certifying fitness to return to work. ⎻ EEOC: Doctors and other healthcare professionals may be too busy to provide fitness-for-duty

documentation. ⎻ EEOC suggests: New approaches, such as reliance on local clinics to provide a form, stamp or an

email to verify information.⎻ Also consider Tele-Health options.

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EEOC Guidance on ADA & PandemicsERs May NOT:• May Not ask EEs to disclose whether they or

family member have medical condition that could make them especially vulnerable to COVID-19. ⎻ If EE voluntarily discloses specific medical

condition or disability ER must keep information confidential.

• May Not compel all EEs to take an influenza vaccine (if developed).⎻ EEs with disabilities or EE with sincerely held

religious belief that prevents EE from taking may need accommodation.

ALSO:• If EE is exposed to someone with

COVID-19, develops COVID-19 symptoms or is diagnosed with COVID-19, ERs need to avoid sharing that personal information with other EEs. It is acceptable to provide general

notice that someone in work area has been exposed, has or may have COVID-19 but ER may not identify impacted EE.

• ERs should enforce procedures consistently (e.g., whether doctor’s note is required to return to work). If EEs are treated differently, ERs

run risk of a discrimination claim.

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• ADA requires ERs to provide reasonable accommodations for EEs with disabilities. – Leaves of absence and working from home impairment that substantially impairs

one or more daily life activities. – However, temporary conditions are typically not considered disabilities under

ADA unless there are complications and the condition lasts for a significant period of time.

– EEs with underlying health conditions that worsen COVID-19 may have disabilities • If ER requires EE to work from home as part of COVID-19 mitigation,

and EE has ADA Accommodation at work, ER may need to provide same accommodation at home.

ADA Accommodations

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Genetic Information Nondiscrimination Act (GINA)

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Genetic Information Nondiscrimination Act (GINA)• GINA prohibits employment discrimination against EEs based on their

or family member’s genetic information. • Genetic information includes information about an EE’s or family

member’s genetic tests and family medical history. • GINA prohibits ERs from using genetic information in making

employment decisions and also prohibits ERs from requesting genetic information.

Practical Guidance: • If ER is concerned about whether EE or the EE’s family member may have

COVID-19, conversations should be focused on current symptoms, travel to impacted areas and potential exposure to others who are infected.

• ERs should not attempt to determine whether EE or family member has condition that could make them more susceptible to COVID-19.

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Other Discrimination Issues

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Other Discrimination Issues

Age and disability discrimination• ERs cannot discriminate on basis of age or

disability (including perceived disability) • COVID-19 may be more risky to health of

individuals over 60 or who have certain underlying medical conditions, such as heart disease

• ERs need to be cautious about treating older EEs or those with known or suspected underlying health conditions differently than they treat other EEs

Race/national origin discrimination• ERs cannot discriminate on basis of race

or national origin • ERs should not make assumptions about

exposure based on either race or nationality, and need to ensure that EEs are also not discriminating against others on basis of race or national origin

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Occupational Safety and Health Act (OSHA)

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Legal/financial issues and resources

Emotional stress, depression

Marital/family issues

Behavioral health or substance abuse

Work-life needs and resources

Health care navigation

• OSHA imposes on ERs a general duty of care to provide a safe and healthy working environment.

• If EE becomes infected by COVID-19 while working (including travel for work), ER is required to prepare and file reports with OSHA.

• OSHA requires ERs to provide personal protective equipment to keep EEs safe from hazards.

Occupational Safety and Health Act (OSHA)OSHA has issued a Guidance on preparing Workplaces for COVID-19.

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Occupational Safety and Health Act (OSHA)

CDC has issued guidance about when personal protective equipment (such as respirators or masks) are required for COVID-19. • Currently, only required for certain healthcare personnel with greater exposure.• Not required non-healthcare settings such as schools. • CDC is not recommending use of face masks or any other protective equipment

by general public who are not showing symptoms. • CDC specifically does not recommend that people who are well wear some

type of mask to protect themselves from COVID-19.• CDC does recommend people with symptoms of COVID-19 should wear

surgical masks.

Personal Protective Equipment & COVID-19

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• OSHA and allowing individuals who may have COVID-19 in the workplace. ⎻ CDC recommends that if EE shows symptoms or has been diagnosed with COVID-19, EE should be

separated from other EEs and be sent home immediately. • ERs may be required under OSHA to take steps to screen clients, guests and other visitors

to work sites. ⎻ If COVID-19 spreads, permitting and/or requiring EEs to work from home may be required to keep

workplace safe. • If an EE refuses to come to work because of fear of contracting COVID-19, ERs probably do

not have to accommodate refusal. • ERs should be mindful, however, that under OSHA, EEs may refuse to do work if all of the

following conditions are met:1. Where possible, EE has asked ER to eliminate danger, and ER failed to do so;2. EE refused work in “good faith”; 3. EE must genuinely believe that imminent danger exists; 4. A reasonable person would agree there is real danger of death or serious injury; and5. There isn’t enough time due to urgency of hazard to get it corrected by requesting OSHA

inspection.

OSHA and presence in the workplace

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Family & Medical Leave Act (FMLA)

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Family & Medical Leave Act (FMLA)Key COVID-19 Issue: Does an EE – or family member – have a SHC?• FMLA defines SHC as illness, injury, impairment or physical or mental

condition that involves either ⎻ Inpatient care (e.g. one overnight hospital stay); or⎻ Continuing treatment by a healthcare provider.

• Examples include the following:⎻ Continuing treatment by healthcare provider (HCP) that results in incapacity

of more than 3 consecutive calendar days with 2 or more in-person visits to the healthcare provider within 30 days of the date of incapacity; OR

⎻ One in-person visit to the HCP with regimen of continuing treatment (e.g., prescription medication, physical therapy).

• Incapacity means “inability to work, attend school or perform other regular daily activities due to the SHC, treatment therefrom or recovery therefrom.”

• Courts have held that common cold or flu are not SHCs unless there are complications.

• Eligible EEs can take up to 12 weeks of unpaid job protected leave per year for, among other reasons: if they are unable to work because of serious health condition (SHC) or if they need to care for parent, child or spouse with a SHC.

• Department of Labor has issued guidance about COVID-19 and FMLA indicating that in certain circumstances an EE may be entitled to FMLA leave because of COVID-19.

• There are also state FMLA laws.

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• CDC has indicated that many people who contract COVID-19 may have little to no symptoms. ⎻ Because individuals can be contagious even if they

have no symptoms, CDC has advised that anyone who has been exposed to COVID-19 should be isolated from others to prevent the spread.

⎻ Many EEs who are required to be out of office because of COVID-19 may not be able to meet definition of SHC.

• Another issue that may arise is whether individual can be properly diagnosed or even seen by HCP.

• If EE is incapacitated for 3 or more consecutive days, and receives treatment as set forth in regulations, EE would be eligible for FMLA leave for their own SHC for days when they are unable to work because of symptoms related to actual or suspected COVID-19.

• Similarly, if they have parent, child or spouse who meets same definitional threshold, EE would be eligible to take FMLA to care for impacted parent, child or spouse for reasons related to actual or suspected COVID-19.

FMLA & COVID-19

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Employment at Will

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• In the U.S. EEs are “at will”. – EEs at will have no vested right to any particular workplace policies or practices. – ER can change conditions of employment at any time with or without notice and with or without

cause. – If EE does not want to abide by the changes, EE is at liberty to terminate employment.

• There are many statutes that curtail employment at will doctrine, including:– Anti-Discrimination laws– Whistleblower laws– Laws prohibiting retaliation (e.g., worker’s compensation; OSHA; National Labor Relations Act)

• However, if statute does not apply, ERs have substantial leeway to make changes at work.– ERs can require EEs to work from home. – ERs can also require EEs who have COVID-19 symptoms or have been exposed to COVID-19 to be

absent from work without pay (if PTO is not available) so long as there is no applicable statutory paid leave requirement.

– ERs should not, however, make only “high risk” EEs work from home (over age 60 or with underlying medical – age and disability discrimination).

Employment At Will

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Fair Labor Standards Act

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• FLSA regulates, among other things, how EEs must be paid and also sets forth rules pertaining to overtime eligibility. ⎻ For non-exempt, overtime eligible EEs, FLSA requires ERs to pay EEs for all hours actually

worked and, if EE works more than 40 hours in a work week, to pay time and one-half for all hours worked over 40.

• Exempt EEs must be paid a salary and if exempt EE works any part of week EE must be paid salary in full. ⎻ ERs can require EEs to use Paid Time Off benefits for time not worked. ⎻ But not reduce pay.

• It may violate FLSA to have exempt EE work part-time on a temporary basis⎻ Changes in salary for exempt employees need to be (1) permanent and (2) still meet

salary basis thresholds.

• Unpaid full-week unpaid furloughs could be problematic if the exempt EE performs any work (e.g., checks email, answers calls).

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Fair Labor Standards Act (FLSA)

Worker’s Compensation

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• Worker’s compensation statutes provide EE is entitled to benefits for occupational diseases but typically exclude ordinary diseases of life to which general public is equally exposed.

• But, if EE can establish direct causal connection to workplace, worker’s compensation coverage may apply.

• ERs can help avoid worker’s compensation claims related to COVID-19 by having appropriate preventative steps in the workplace.

Worker’s Compensation

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Lay-offs & Furloughs

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Lay-offs vs. Furloughs

• Lay-off involves a termination of employment and automatically triggers unemployment.

• Furlough is temporary mandatory period of time off work without pay.

• Typically employees remain on ER’s health insurance during a furlough but you must check the underlying plan provisions to make sure that you are permitted to continue coverage during a furlough.

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COBRA Triggers and Consequences• If an employee experiences a reduction in hours that makes the

employee ineligible for health insurance coverage under the terms of the policy, employers must provide COBRA notification.

• Failure to do so:⎻ ER can be subject to a $100 excise tax for each day the notice is late

(or $200 per day if more than one person is affected, i.e., a spouse or dependent) and a $110 per day penalty under ERISA.

⎻ If a beneficiary has medical expenses that would have been covered by the offer of COBRA that was not made, a lawsuit can be brought for the amount that would have been covered had COBRA been offered.

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The Federal WARN Act• Federal Warn Act applies to ERs with 100 or more EEs• Must provide at least 60 days written notice of plant closing or mass layoff:

• Plant closing: 50 or more EEs at a single site of employment that results from shutting down (1) site or (2) an operating unit, division, department or other function portion thereof.

• Mass layoff: • At least 50EEs and 33% of EEs at specific site OR• At least 500 EEs regardless of percentage

• Applies to “employment losses” • Reduction in hours of more than 50%/month for 6 consecutive months• Furloughs less than 6 mos. do not trigger

• Exceptions to notice:• Natural disaster • Unforeseeable business circumstances

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• There are also State Warn laws. • CA has relaxed notice provisions for

COVID-19 terminations

HRCE Credit

SHRM: 20-DK465HRCI: 520210 

Questions?

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Group insurance policies are underwritten by Sun Life Assurance Company of Canada (Wellesley Hills, MA) in all states except New York. In New York, group insurance policies are underwritten by Sun Life and Health Insurance Company (U.S.) (Lansing, MI).

© 2020 Sun Life Assurance Company of Canada, Wellesley Hills, MA 02481. All rights reserved. Sun Life Financial and the globe symbol are registered trademarks of Sun Life Assurance Company of Canada. Visit us at www.sunlife.com/us.

GAMSPPT-9270J SLPC 30015 03/20 (exp 03/21)

This content is not to be considered legal advice. We recommend Clients speak with legal counsel specializing in labor and employment law to ensure your organization meets requirements.

APPENDIX

State and localCOVID-19 Leave Requirements

State Coronavirus Leave Efforts

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New York

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NY legislature has amended their statutory disability (NY DBL) and Paid Family Leave laws (NY PFL) to provide benefits to EEs impacted by COVID-19.

Job Protected Leave for EEs subject to mandatory or precautionary order of quarantine or isolation by NY state, or any department of health, local board of

health or other government entity due to COVID-19 (“Quarantine Order”)

All ERs must provide job-protected unpaid leave until the end of Quarantine OrderDoes ER have to provide these paid sick days for each Quarantine Order?

Employer Size Paid Sick Days≤10 EEs (with ≤ $1 million net 2019 income) 0

≤10 EEs (with >$1 million net 2019 income) 5

11-99 EEs 5

≥100 EEs & Public ERs (any size) 14

Amendments to NY DBL/PFL: Effective 3/19/2020

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After the paid sick leave for COVID-19, EE can file for both NY DBL and NY PFL at the same time. Only applies to private ERs with < 100 EEsLaw changes definition of disability to include inability of EE to work during a Quarantine Order and when an EE has exhausted all Paid Sick Leave provided under Act (on prior slide)• This eliminates the waiting period for EEs at ERs with 10 or fewer EEs and

less than $1,000,000 in net incomeLaw also changes “family leave” to mean:• any leave taken by EE from work when subject to Quarantine Order or• to care for minor dependent child of EE who is subject to Quarantine Order

Special COVID-19 NY DBL & NY PFL Benefits

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EEs who are asymptomatic or not yet diagnosed with any

medical condition and are physically able to work during Quarantine

Order whether remotely or otherwise are NOT eligible

A Quarantine Order is sufficient proof

of disability or need for PFL

If EE is eligible for federal paid COVID-19 leave, EE cannot get special NY COVID-19 benefits – except as a

“top up”

NY DBL/NY PFL Current Max. Weekly Benefit COVID-19 Weekly Max. Benefit

NY DBL $170/week $2,043.92/weekNY PFL $840.70/week $ 840.70/weekTotal Not allowed to receive both $2,884.62

Amount of COVID-19 related NY DBL & PFL Benefit

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Potential Issues under NY COVID-19 Laws• How do you measure size of ER?

NY Worker’s Compensation Board (WCB) has said all employees, not just those in NY• The COVID-19 Paid Sick Leave only applies if an EE is subject to a

Quarantine Order. Paid Sick Leave not available to care for child or others subject to Quarantine

Order Must be Quarantine Order that applies to EE EE may be able to get personal Quarantine Order if child has Quarantine Order Paid Sick Leave is not available if EE has been diagnosed with COVID-19 or is

experiencing symptoms of COVID-19 if there is no individualized Quarantine Order

EE can get attestation from HCP and has 30 days to get Quarantine Order

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Potential Issues under NY COVID-19 Laws• Quarantine or Isolation Order has very narrow definition Must be issued by NY State Department of Health or Local Health Department. If EE cannot get order, can submit Attestation from treating health care provider but must

submit actual order within 30 days.• Mandatory Isolation: Individual has tested positive for COVID-19 or Testing is unavailable but individual is symptomatic and had contact with known COVID-19 case

• Mandatory Quarantine: Individual has been in close contact with someone who tested positive for COVID-19 or is

currently in mandatory isolation or Individual is symptomatic and has returned w/in 14 days from level 2, 3, or 4 COVID-19 risk rated

country• Precautionary Quarantine: Individual is asymptomatic and has returned w/in 14 days from level 2, 3 or 4 COVID-19 risk

rated country or Individual has been determined to have had proximate exposure with someone who tested

positive for COVID-1966

• As originally drafted NY COVID-19 leave law included a regular Paid Sick Leave law that was to be effective 180 days after enactment.

• The Governor decided to put that general paid sick leave proposal “on hold,” to be revisited later.

Proposed NY Paid Sick Leave – broader than COVID-19 – put on HOLD

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New Jersey

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New COVID-19 Legislation – New Jersey S2304

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NJ Governor signed S2304 on 3/25/20. Effective immediately:1. EEs can use paid sick leave under Earned Sick Leave law for school or

work closure because of state of emergency declared by Governor for epidemic or is quarantined, or caring for family member who is quarantined.

2. Definition of “serious health condition” under NJ unpaid Family Leave Act is expanded to include epidemic-related absences where healthcare provider (HCP) or public health authority has determined that presence of family member in the community is dangerous and the HCP or authority has ordered family member to be isolated or quarantined. Does not apply for an employee’s own quarantine or isolation

NJ S2304 Expands Statutory Disability & Paid Family Leave3. NJ Statutory Disability (DI) is expanded to include:

• “Sickness” for purposes of DI during an emergency declared by the Governor or by a public health authority in relation to a communicable epidemic to include a quarantine or isolation recommendation by a health care provider or public health authority because an EE’s presence in the community could jeopardize the health of others.

• 7 day waiting period is waived.

4. NJ Paid Family leave (PFL) is expanded to include:• Same as above when the quarantine or isolation recommendation

relates to a family member who needs in-home care or treatment

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Colorado

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Emergency Colorado Dep’t Labor & Employment Orders • Effective 3/11/2020 and amended/expanded on 3/26/20• In effect for 30 days (or longer if Governor extends state of

Emergency)• ERs in leisure & hospitality, food services, childcare, education,

food service, home health of high-risk individuals, nursing homes and community living facilities must provide:• Up to 4 calendar days of fully paid sick leave• To EEs with flu-like symptoms who are being tested for COVID-19

• Expanded 3/26 to include EEs where HCP has recommended isolation or quarantine even if not being tested

• If EE receives a negative test before end of 4 days, paid leave ends• ERs who already provided 4 paid sick leave days do not need to provide

additional paid sick leave unless EE already exhausted paid sick time.72

Rhode Island

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Rhode Island Temporary Disability Insurance (TDI) and Temporary Caregiver Insurance (TCI)

• For COVID-19 related claims, RI will waive 7 day minimum amount of time that claimants must be out of work to qualify for TDI/TCI benefits.

• For individuals under quarantine, RI will waive required medical certification and allow temporary qualification by self-attestation that they are/were under quarantine due to COVID-19.

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Washington, D.C.

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D.C. expanded unpaid FMLA Act

• Creates new Declaration of Emergency Leave• EEs who cannot work due to “circumstances giving rise to public health

emergency”. Includes at a minimum: COVID-19 government-mandated quarantine or isolation OR If government or medical professional recommends EE self-quarantine or isolate

• Applies to ERs of all size• Applies to all EEs – no length of service or hours worked required• Duration is for period of Public health Emergency• Effective for 90 days (subject to extension)• The government-mandated quarantine or isolation order does

not appear to need to be individualized (regulations may clarify)76

Oregon

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Oregon Temporarily Expands Family Leave Act• Oregon Bureau of Labor & Industries issued rules

temporarily expanding the Oregon Family Leave Act (OFLA) to cover:• An absence to care for EE’s child whose school or place of care

has been closed in conjunction with a statewide public health emergency declared by a public health official

• Governor Brown ordered K-12 schools closed through 4/28/2020

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Examples of Other Proposed Legislation

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State/City Proposal State City Proposal

CA AB 2887

Amends Paid Sick Leave (PSL) law to provide EE with paid sick days for immediate use in public health emergency (PHE)

MNHB 4414

Permits kin care benefits when EE or EE’s family member in quarantine or isolation or for business or school closure due to communicable disease

CAAB 3123

Prohibits retaliation for cooperating with quarantine/isolation order; Permits use of PSL if place of business is closed due to PHE or if EE’s child’s school is closed for PHE

MNHB 3532/SB 4194

Amends quarantine leave statute to provide increased protections for quarantined workers, including option to work from home

CA AB 3216

Amends CFRA to make it unlawful to refuse to grant request by employee to take family and medical leave due to COVID-19

P.R.PC 2428

Provides guidance on minimum wage, vacation and sick leave when there is epidemic

MIHB 5701

Prohibits ERs from taking adverse action against EE who is absent from work during a declared emergency

P. R.PC 2447

In public emergency during which business operations are shut down and EEs cannot work, EEs must be paid up to 2 weeks of full salary

KY SB 282 Requires ER to provide paid sick leave in response to COVID-19

WA SeattleCB 119754

Amends Paid Sick leave ordinance to relax provisions on using leave due to closure of school or place of care

Many legislative proposals to expand Paid Sick Leave Laws to included COVID-19 related absences• Many states and cities have adopted or are proposing expansions

of paid sick leave laws to cover various reasons for absences related to COVID-19, including:• School or child care closures• Shelter-in-place orders• Recommendations by health care providers or government offices

regarding isolation and quarantine.

• Check your local rules and requirements• Legislation, Regulations, Executive or Agency Orders

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