How much time is an Employer required to give Employees under the FFCRA?

The Florida United Businesses Association (FUBA) released a great Q&A for Employers.  The quick answer is 2 weeks/80 hours, but with everything COVID, we realize that there is generally more behind the scenes.   Here is FUBA’s look into the small print. Great 2 minute read!

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FUBA COVID-19 Update: Can An Employee Get More Than 2 Weeks Of Paid Leave?

Here are the 3 most common questions we get from our small business members about paid leave under the Families First Coronavirus Response Act (FFCRA):

1) One of my employees has already used their 2 weeks/80 hours of paid FFCRA leave but now they can’t work because they have COVID-19. Do I have to give them another 2 weeks of paid leave?

No. The FFCRA requires employers give employees 2 weeks (80 hours) of paid leave only if the employee cannot work because of one of these reasons:

  1. The employee has been told to quarantine by a health care provider or by a government order.
  2. The employee has COVID-19 symptoms and is seeking a diagnosis (i.e., they are getting a COVID-19 test and are waiting on the results).
  3. The employee must stay home to care for someone who has been quarantined by a health care provider or by a government order.
  4. The employee must stay home to care for a child under 18 whose school or childcare is unavailable due to COVID-19. These employees are also eligible for an additional 10 weeks of paid leave, for a total of 12 weeks’ paid leave.

Employers are only required to give the 2 weeks paid leave one time. Once an employee has used their 2 weeks of paid leave, they don’t get another two weeks even if they meet one of the reasons above.

If one of your employees has used their 2 weeks of paid leave and then gets sick with COVID-19 or has to quarantine because they were exposed to someone with COVID-19, you can decide whether to allow the employee to take unpaid leave or to use any vacation/sick time the employee has. But you do not have to provide another 2 weeks of paid leave under the FFCRA.

The only time employees may get additional paid leave is for reason #4 above: if an employee has to stay home to care for a minor child whose school or daycare is closed due to COVID-19, they may be entitled to an additional 10 weeks of paid leave.

2) One of my employees took 4 days of paid FFCRA leave last month because he had a COVID-19 test and was waiting on the test results. He returned to work when the test was negative, and we paid him for the 4 days he was out. Now we need him to quarantine because his wife has COVID-19 and we do not want him coming to work for 14 days. Can he now use the 6 remaining days of paid leave?

Yes. The employee is entitled to take the remaining hours of paid leave (6 work days in this example). The rest of the leave can either be unpaid or vacation/sick leave at the employer’s discretion.

3) One of my employees took their 2 weeks (80 hours) of paid FFCRA leave and then was furloughed. We’ve now rehired her and she’s back at work. Does she get another two weeks of paid leave?

No. Employees are only entitled to 80 total hours of paid sick leave under the FFCRA.

If you are a FUBA member and have questions about paid leave in your business, call FUBA’s team of experts at 800-262-4483 or email us with your questions.

For more information about paid leave under the FFCRA, including documentation you should get from your employees who take this leave as well as tax credits for businesses who provide this paid leave, please visit FUBA’s Coronavirus Resources for small businesses:

Paid Leave for Employees if School/Daycare/Summer Camps are Closed

With the new school year fast approaching and some schools electing to delay the start date, we want to make sure employers are plugged into the requirements of FFCRA. Small businesses are required by the Families First Coronavirus Response Act (FFCRA) to give employees paid leave from wok in certain circumstances relating to COVID-19. One requirement is that the child’s school/daycare/summer camp must be unavailable because of COVID-19.

The below article from FUBA helps breakdown the requirements of FFCRA.

Small businesses are required by the Families First Coronavirus Response Act (FFCRA) to give employees paid leave from work in certain circumstances relating to COVID-19. Employees who cannot work due to very specific reasons related to COVID-19 are entitled to two weeks of paid leave, with an additional 10 weeks of paid leave if they have to stay home to care for a son or daughter whose school, daycare, or summer camp is closed due to COVID-19.

If you have an employee who cannot come to work because they have to take care of a child because the child’s summer daycare – a school, camp or other program in which the employee’s child is enrolled – is closed or unavailable for a COVID-19 related reason, the employee may be entitled to paid leave.

Keep in mind that the child’s school/daycare/summer camp must be unavailable because of COVID-19. School being closed for summer vacation does not qualify an employee for paid leave because school is always closed during the summer and that closure is not related to COVID-19. If school does not reopen in the fall due to COVID-19, that may qualify employees for paid leave. However, if schools reopen but the employee’s children are attending online or digitally, the employee may not qualify for paid leave.

If an employee requests paid leave, you should get the following:

  1. The employee’s name and the dates the leave is requested
  2. A statement of the COVID-19 related reason the employee is requesting leave
  3. A statement that the employee is unable to work or telework for this reason
  4. Documentation supporting the reason for leave

The employee also needs to give you the name and age of the child they will be taking care of, the name of the daycare/summer camp that has closed, and they must provide a statement that no one else will be caring for the child while the employee is on paid leave. If the child is older than 14, the employee must show that special circumstances require them to stay home with the child during daylight hours.

Employees taking paid leave because their child’s daycare/summer camp is closed due to COVID-19 must be paid two-thirds their regular rate of pay, up to $200 per day. Learn more about calculating pay here.

You can offset the cost of their leave by keeping a portion of the quarterly federal employment taxes you would otherwise deposit with the IRS. If the cost of the leave is more than your federal employment tax bill, you can request an advance refund from the IRS using form 7200. To claim a payroll tax credit, you must retain the documentation described above and comply with any IRS procedures for claiming the tax credit. For more information about how to claim these payroll tax credits and what documentation is required, click here. For more information about form 7200, click here.

Click here to learn about other reasons that entitle employees to paid leave.

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This article was written by FUBA Workers’ Comp

Recent COVID-19 Claims Examples and Changes

Check out the article below to see some examples of COVID-19 claims and how it is affecting employers, carriers and employees alike.
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Coronavirus/COVID-19 is affecting Florida workers’ compensation claims in a variety of ways, including litigation events (being required to appear telephonically for events or having to continue final hearings due to delays in being able to depose physicians) and the actual workers’ compensation claims themselves as discussed below.

On April 24, 2020, Judge Timothy Stanton of the Gainesville Office of Judges of Compensation Claims found in Gomez, Esteban v. Ridgeway Roof Truss/Zenith Insurance Company, OJCC Case No. 19-016953TSS (Final Compensation Order dated April 24, 2020)  that “based upon the COVID-19 pandemic and its associated risks and restrictions,” the employer’s/carrier’s selection of a physician an hour away from the claimant’s home whereby the claimant would be transported to the medical appointment in “close proximity to a stranger, in an enclosed vehicle for close to two hours for each medical visit that may expose him and his family to COVID-19 (was) unreasonable.” The employer/carrier was required to select and authorize a local physician to provide the claimant with medical treatment, whereby his wife could drive him to appointments, due to Florida being “engulfed in the Coronavirus (COVID-19) pandemic” and preventing the spread of this virus.

On May 14, 2020, Judge Robert Arthur of the Lakeland Office of Judges of Compensation Claims opined asserting that an injured employee’s failure to meet its prima facia burden to show entitlement to temporary partial disability benefits (i.e. in asserting there was a break in the causation chain due to COVID-19) is an affirmative defense that should be listed on the Uniform Pretrial Stipulation.  “The parties are required to set forth their claims and defenses in the Pretrial Stipulation. It is the employer’s/carrier’s burden to demonstrate a break in the causation chain. As the employer/carrier bears the burden to establish the break in the causal chain this is an affirmative defense that must be pled with specificity on the Pretrial Stipulation.” See Gamero-Hernandez, Teresa v. Beals/Sedgwick CMS, OJCC Case Nos. 17-023646RAA; 18-007955RAA (Final Compensation Order dated May 14, 2020) citing Knight v. Walgreens, 109 So. 3d 1224 (Fla. 1st DCA 2013); Perez v. Se. Freight Lines, Inc., 159 So. 3d 412 (Fla. 1st DCA 2015); Meehan v. Orange County Data & Appraisals, 272 So. 3d 458 (Fla. 1st DCA 2019)

On May 21, 2020, Judge Keef Owens of the Port St. Lucie Office of Judges of Compensation Claims denied a claimant’s motion for an advance of $2,000.00 as the claimant failed to demonstrate (1) a failure to return to employment at no substantial wage reduction; (2) a substantial loss of earning capacity; or (3) an actual or apparent physical impairment. Judge Owens stated, “An advance serves as a ‘stopgap to help a claimant avoid defaulting with creditors while awaiting the potential distribution of workers’ compensation benefits, when the reduction in income is caused by the injury.” In this case, the claimant was not working for the employer because she had been furloughed due to COVID-19.  As such, Judge Owens found that her “reduction of earnings is not a result of her work-related accident” and therefore no advance was due and owing to the claimant. See Paradise, Kyley v. Global Hospitality Management/MEMIC Indemnity Co., OJCC No. 20-004078KFO (Evidentiary Order on Claimant’s Motion for Advance dated May 21, 2020 (citations omitted.)

The decisions amongst the various Offices of Judges of Compensation Claims may vary on a case-by-case basis. In general, it appears that JCCs prefer employer’s/carrier’s to limit exposure by coordinating appointments that the claimant is able to drive to, without the need for providing means of transportation.  Any COVID-19 affirmative defenses need to be listed on the Uniform Pretrial Stipulation or same will be waived as a defense.  And when determining whether an advance may be due and owing to an injured employee, the employer/carrier should further investigate whether the claimant’s reduction in income is due to the industrial accident or rather furloughs due to COVID-19.

Remember that coronavirus/COVID-19 exposure claims are being treated as occupational injuries and/or exposure.  These claims have a higher burden of proof and require the claimant to use a clear and convincing burden of proof to prove causation in relation to Florida Statute Sections 440.01(1) and 440.151(1)(a) and (2).

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This article was written by Amanda Mitteer Bartley with Chartwell Law. Article link is below:

https://www.jdsupra.com/legalnews/various-effects-of-coronavirus-on-96202/

How Are Employers Protected From Covid-19? Now Is The Time To Understand Your EPLI Coverage!

What can we learn from the first COVID-19 related suit filed against Walmart in March 2020? What the claim identified as Negligence.

See article below to ensure these considerations are built into your COVID-19 Returning to Work Strategy and Your Company’s Action Plan on handling everything COVID.

What does your EPLI policy cover? Important policy line items and questions ask to understand your coverage.  When does my PEO EPLI kick in, what is the WARN Act Exclusion specific to my policy, etc

Read the below to know the right questions to ask about your EPLI coverage.

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The COVID-19 pandemic has forced employers across the country to rapidly make numerous and significant decisions about how to manage their business in this unprecedented time. Employers have had to quickly develop and implement policies and procedures addressing remote work, layoffs, furloughs, pay cuts, workplace conditions, and a host of other issues. Not surprisingly, we’re already starting to see COVID-19-related lawsuits being filed against employers.

The first suit was filed against Walmart by the estate of an employee who passed away due to complications of COVID-19 on March 25, 2020. The complaint alleged that store management knew that several employees and individuals at the store were exhibiting symptoms of COVID-19. Nevertheless, the estate alleged, Walmart was negligent in the following respects:

  • Failing to cleanse and sterilize the store in order to prevent infection of COVID-19;
  • Failing to implement, promote, and enforce federal and state social distancing guidelines;
  • Failing to provide the decedent and other employees with personal protective equipment such as masks, latex gloves, and other protective devices;
  • Failing to warn the decedent and other employees that various individuals were experiencing symptoms at the store and may have been infected by COVID-19, which was present and active within the store;
  • Failing to adequately address or otherwise ignoring other employees who had communicated that they were experiencing signs and symptoms of COVID-19;
  • Failing to follow Department of Labor and Occupational Safety and Health Act (OSHA) recommendations;
  • Failing to follow CDC guidelines to keep the workplace in a safe and healthy condition and to prevent employees and others within the store from contracting COVID-19;
  • Failing to develop an Infectious Disease Preparedness and Response Plan as recommended by the CDC;
  • Failing to prepare or implement basic infection prevention measures as recommended by the CDC;
  • Failing to conduct periodic inspections of the condition and cleanliness of the store as recommended by the CDC;
  • Failing to provide employees with antibacterial soaps, antibacterial wipes, and other cleaning agents as recommended by the CDC;
  • Failing to develop policies and procedures for prompt identification and isolation of sick people as recommended by the CDC;
  • Failing to develop, implement, and communicate to its employees about workplace flexibilities and protections as recommended by the CDC;
  • Failing to implement engineering controls designed to prevent COVID-19 infection including, such as installing high-efficiency air filters, increasing ventilation rates in the work environment, and installing physical barriers such as clear plastic sneeze guards, as recommended by the CDC;
  • Failing to cease operations of the store and to otherwise close the store when it knew, or should have known, that various employees and others present at the store were experiencing symptoms of COVID-19;
  • Failing to properly train personnel to implement and follow procedures designed to minimize the risk of contracting COVID-19;
  • Failing to periodically interview and/or evaluate employees for signs and symptoms of COVID-19;
  • Failing to prohibit employees who were exhibiting signs and symptoms of COVID-19 from working at the store or otherwise entering the premises; and,
  • Hiring employees via telephone and other remote means in an expedited process without personally interviewing or evaluating whether prospective employees had been exhibiting signs and symptoms of the COVID-19 prior to the commencement of their employment.

A second wrongful death lawsuit was filed in Texas state court against a meat packing company following the death of a forklift driver at the defendant’s plant. Plaintiffs alleged that the decedent was told he would be laid off if he didn’t report to work—despite exhibiting symptoms of COVID-19—and that the defendant “refused to take the pandemic seriously, and kept its functions as normal, taking no precautions and implementing no protocols for the safety of its workers.” The plaintiffs further alleged that, “[a]round April 8, 2020 it had become very clear that people in the factory were sick, and that Covid-19 was among them – factory owners and managers played the fiddle. [The decedent] contracted the disease at work, was forced to separate from his partner and children, in order to protect them, and then – became part of the statistic of over 60,000 people who have died in the USA since the pandemic took hold.” The plaintiffs asserted claims for negligence and wrongful death asserting the defendant failed to:

  • Supervise the environment, placing protocols, providing and requiring masks, gloves, and enforcing six feet social distancing as per CDC and local orders;
  • Provide safety tools and equipment that is the basis of this lawsuit;
  • Ensure company premises were maintained in a way to prevent illness and injuries to its employees;
  • Supervise the employee’s activities as per CDC and Dallas County protocols;
  • Warn employees as to the hazards of their employment post COVID-19 pandemic;
  • Install, adopt, or employ adequate safety measures to prevent COVID-19 incidents.

Undoubtedly, these lawsuits are just the tip of the iceberg. See, e.g., “2 Utah County businesses told staff to ignore COVID-19 guidelines, resulting in 68 positive cases,”Daily Herald, May 5, 2020 and “A Detroit Nurse Was Fired After Speaking Out About Her Hospital’s Handling Of The Coronavirus Outbreak. Now She’s Fighting Back,” Buzzfeed News, April 21, 2020. As more organizations attempt to reopen in the absence of a coronavirus vaccine, we will likely see a substantial wave of employment-related COVID-19 lawsuits, leading to claims under Employment Practices Liability Insurance (EPLI) policies.

We consider some of the likely EPLI coverage issues below.

COVID-19 EPLI Coverage Issues

We note at the outset that there is no standard EPLI policy, and coverage terms, conditions, and exclusions vary considerably. Accordingly, review of the precise language of the particular policy will be required. When considering COVID-19 EPLI claims, insurers should pay special attention to the following issues:

Notice

Although timely notice of a claim is a critical threshold issue under virtually every insurance policy, it can be particularly challenging in the EPLI context where verbal communications with employees could constitute notice under certain policy forms. Policy requirements for notice of claim and notice of circumstances, if applicable, should be closely considered in the context of the information provided by the insured. Since EPLI policies are typically written on a claims-made basis, it’s important to make sure the claim was reported within the timeframe specified in the policy. Prior notice issues also should be considered. Decisions concerning the disposition of notifications under EPLI policies should be consistently made, timely, and well documented.

Employment Wrongful Act

Another threshold issue to be examined is whether the claim falls within the policy’s definition of an “employment wrongful act.” Keep in mind that many EPLI policies contain manuscripted provisions, so it will be important to carefully review the entire policy and endorsements. The impact of COVID-19-related governmental orders may also need to be evaluated in connection with any claim. When considering claims brought against the insured by non-employees—such as customers, clients, and vendors—it will be important to ascertain whether the policy extends coverage to third-party employment practices.

Bodily Injury Exclusion

Bodily injury claims are typically excluded under EPLI policies, although such exclusions often contain an exception for emotional distress or mental anguish claims. Distinctions between exclusions for claims “for bodily injury” versus claims “arising out of bodily injury” could be important in some instances.

OSHA and FMLA Violations

COVID-19 claims for actual or alleged OSHA and Family and Medical Leave Act (FMLA) violations may be subject to OSHA and FMLA exclusions. Those exclusions typically will have a carve-out for related retaliation claims, such as an allegation that an employee was impermissibly laid off after exercising OSHA or FMLA rights, so careful review of the claim is imperative.

Wage and Hour and FLSA Claims

Most employers have instituted new work routines for their employees as result of COVID-19 and related government orders, including work from home, self-quarantine requests, procedures concerning time capture, and new work schedules. This could lead to compensation disputes giving rise to Wage and Hour and Fair Labor Standard Act (FLSA) claims. Depending on the terms of the policy, such claims may be excluded entirely, covered only for defense costs, or fully covered.

WARN Act Exclusion

In light of widespread COVID-19 layoffs and furloughs, employers are likely to face wrongful termination lawsuits. While EPLI policies generally cover claims for wrongful termination, retaliation, and discrimination, claims for Worker Adjustment and Retraining Notification (WARN) Act violations typically are excluded. The policy, however, may contain “employment events” coverage, which is triggered by terminations affecting a specified percentage of the workforce, i.e. 10-15% of employees.

Criminal and Fraudulent Acts Exclusion

Depending on the particular facts giving rise to a claim, a policy exclusion for malicious, fraudulent, and criminal acts or omissions may apply. The exclusion should be carefully reviewed with regard to the timing of its application; many exclusions are not be triggered until there is an adjudication of the deliberate act or omission. The exclusion may also have a carve-out for defense costs. An insurer’s reservation of rights concerning these issues should be carefully considered in light of the allegations at issue, the precise policy language, and the applicable law. Insurers should also check for potentially relevant exclusions for punitive and exemplary damages.

Issues Arising from PEOs

A growing number of today’s companies utilize the services of professional employer organizations (PEOs) to manage certain human resources functions and related administrative functions. Depending on the services provided by the PEO (for example, whether the PEO is the employer of record or a co-employer) and the legal relationship between the insured company and the PEO, a variety of issues impacting coverage under an EPLI policy may arise. Coverage for any given claim may also implicate the PEO’s EPLI policy, so insurers should review their policy’s “other insurance” provision, which may need to be addressed when considering its defense obligation and reserving rights.

Injunctive and Equitable Relief

Employers should anticipate lawsuits demanding they implement certain actions and/or make accommodations to remedy alleged unsafe employment practices and workplace conditions, including for employees who are members of a protected status. Typically, EPLI policies do not cover costs to comply with injunctive relief, costs of accommodations associated with disabilities, or other protected status, benefits due, or salary obligations. Front pay and back pay, however, are often covered in the policy’s definition of “loss.” These issues should be kept in mind when evaluating coverage and reserving rights.

Final Thoughts

EPL insurers should anticipate an increasing number of COVID-19-related claims , particularly as many companies are taking steps to reopen their businesses. In this regard, it’s worth noting that as an added benefit to policyholders, some EPLI policies provide access to pre-claim legal advice services from qualified employment counsel. Given the wide range and high stakes of COVID-19 risks confronting employers, some insurers have reminded their policyholders about taking advantage of this service.

credit to original article: https://www.jdsupra.com/legalnews/early-covid-19-liability-suits-raise-31472

written by: Hinshaw & Culbertson – Insights for Insurers

Paid Leave Concerns When Employees Get COVID-19 Twice – Law360.com

https://www.law360.com/articles/1291176

Law360 (July 15, 2020, 4:21 PM EDT) —

Mark Konkel
Mark Konkel
Maria Biaggi
Maria Biaggi
Nicholas Kromka
Nicholas Kromka

The coronavirus has been novel in more ways than one. On one end of the spectrum, employers confront new questions of almost philosophical dimensions.

How much risk is too much risk? What risks should we ask our employees to accept? Where is the line between ordinary risk — the kind that employees undertake when they walk out the door every day to go to work — and the extraordinary risks posed by a pandemic from which, in the end, employers cannot entirely shield their workforces?

A seemingly more mundane novelty is the plethora of new COVID-19 laws and regulations. Compliance should just be a matter of reading a statute and, well, complying. But even there, an evolving real-world pandemic potentially makes compliance just as complicated.

One example we have helped our clients wrestle with involves exactly this kind of straightforward-on-paper, tricky-in-practice complexity.

One requirement of the Families First Coronavirus Response Act appears to be simple: When an employee working for an employer with under 500 employees gets sick with COVID-19, is seeking a COVID-19 diagnosis, or is subject to a quarantine order of a doctor or a government, they are entitled to up to 80 hours of emergency paid sick leave.

And that made perfect sense when the law was hurriedly drafted: You get sick once, and you do not get sick again, right?

Wrong. Mounting evidence now shows that contracting COVID-19 does not confer absolute immunity and that many individuals have now contracted the novel coronavirus more than once. So what happens when an employee exhausts his or her 80-hour emergency paid sick leave entitlement, recovers from COVID-19, and then contracts it again?

What are the basic requirements of the FFCRA?

Under the FFCRA, full-time and part-time employees who are unable to work or telework due to one of the qualifying reasons below may take up to 80 hours of paid sick leave.

  • 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 the first or second reason 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 the U.S. Department of Health and Human Services in consultation with the secretary of the U.S. Department of the Treasury and the secretary of the U.S. Department of Labor.

An employee who contracts COVID-19 may be eligible to take 80 hours of emergency paid sick leave for one or more of the above-qualifying reasons. However, they may only take 80 hours of paid sick leave once.

That is, the language of the FFCRA is arguably quite clear that two weeks of emergency paid sick leave is all an employee is entitled to within one Family and Medical Leave Act period, i.e., 12 months, whether a calendar year, another fixed 12-month leave year, etc.

The new legislation, effective April 1 to Dec. 31, was quickly drafted in March when the coronavirus was still novel. But while there is still so much that is unknown about COVID-19, we can no longer assume that an individual who has been infected with COVID-19 and recovers, will not be able to get the virus again.

In the U.S., people are reporting testing positive for the virus after having recovered from an initial infection.[1] According to the Centers for Disease Control and Prevention:

When a positive test occurs less than about 6 weeks after the person met criteria for discontinuation of isolation, it can be difficult to determine if the positive test represents a new infection or a persistently positive test associated with the previous infection. If the positive test occurs more than 6-8 weeks after the person has completed their most recent isolation, clinicians and public health authorities should consider the possibility of reinfection.[2]

And, of course, persons who are determined to be potentially infectious should undergo evaluation and remain isolated.

In April, the DOL issued guidance which also confirms the plain language of the FFCRA’s FMLA Expansion Act. That is, employees are not entitled to any more than 12 weeks of FMLA leave in a 12-month period, regardless of whether an employee takes paid leave under the FMLA Expansion Act or regular unpaid FMLA leave for reasons unrelated to COVID-19.

The FMLA Expansion Act does not add additional job-protected leave time. Rather, it adds additional qualifying reasons to take leave. Thus, an employee who takes 12 weeks of FMLA leave, does not have an additional 12 weeks of leave under the act because he or she is, for example, experiencing symptoms of COVID–19 for a second time and seeking another medical diagnosis.

Moreover, employees who may have taken FMLA leave for reasons other than the public health emergency in the preceding leave year may have reduced leave time under the FMLA for purposes of the public health emergency. This may have the unfortunate effect of potentially leaving those who are most vulnerable with less leave time than employees who have not needed to use regular unpaid FMLA leave for their own serious health condition. Also, the FFCRA only applies to employers with 500 or fewer employees.

New York employers are required to comply with both the FFCRA and the New York Emergency Paid Sick Leave Law, or EPSL. The benefits available under the EPSL vary based on the size and net income of the employer.

Under the EPSL, private employers with 100 or more employees are required to provide their employees with at least 14 days of paid sick leave. Employees in New York are eligible for benefits under the EPSL when the benefits provided by that law are in excess of those provided under the FFCRA.

In this situation, employees would be entitled to federal benefits, plus the difference in benefits provided under the FFCRA and the EPSL. In other words, no double dipping. And, unless the employee has to care for a family member with a serious health condition, he or she would not be entitled to New York paid family leave.

Given all this, there is no statutory obligation under the FFCRA to provide employees with additional paid leave in the unfortunate circumstance that an employee contracts the virus twice. However, this may not always be the answer under state law.

For example, the New York State Department of Health and New York State Department of Labor recently issued guidance providing that health care employees who test positive after a quarantine or isolation may receive paid sick leave for up to two additional periods of quarantine or isolation.

Employers could certainly opt to pay employees during a second quarantine, but they are not required to under the current federal law. Alternatively, employers could provide unpaid time off, if the employee has exhausted his or her paid time off.

An employer may also be obligated to consider leave as a reasonable accommodation for individuals whose disabilities put them at greater risk from COVID-19, unless such an accommodation would cause an undue hardship on the employer.

So that ends the inquiry, right? Again: wrong.

What’s an employer to do?

We are always wary of simple answers to tricky questions. One answer to the questions posed above is deceptively simple: If an employee has exhausted her 80 hours of FFCRA leave, it is exhausted, and she is not entitled to a second round of leave.

While that position is straightforward and legally defensible, it misses a bigger context. If an employee is not entitled to additional leave but has contracted COVID-19 twice (or more), a sensible employer, or at least, one that is interested in avoiding getting sued by other employees, will not allow the sick employee to return to work. But if an employer takes the position that an employee ordered to stay home is not entitled to pay, it opens up a whole other can of worms.

One policy arguably underlying the pay protection provisions of the FFCRA is to encourage candor: Employees will be less likely to ignore or minimize their own symptoms, and to tell their employers about what is going on, if they are not concerned about losing compensation as a reward for their honesty.

And with federal unemployment benefits of $600 per week in addition to the normal level of benefits still in place, an employee may well consider continuing to stay home or eventually finding another job.

These concerns underscore why many larger employers who are not subject to the FFCRA’s coverage because of their size have gratuitously offered pay protection to sick employees: You want to know that employees are sick, tell them to stay home to avoid community spread in the workplace, and — perhaps most importantly to your longer-term business goals — actually retain a workforce you hope can return soon enough in full force.

Obviously, employers must first and foremost ensure compliance with applicable law, including the FFCRA. But navigating the pandemic is not just a question of strict compliance. Arguably, protecting continuity of operations, the health of the workforce and an employer’s long-term investment in its workforce is at least as important as ensuring any shorter-term compliance.

While this article cannot address how a specific employer will weigh those potentially competing concerns, smart employers consider all of those impacts in deciding whether or not to maintain a leave policy that may exceed, not just meet, the requirements of the FFCRA.

Regardless of whether the U.S. is in the first or second wave, the possibility is now evident that employees may get the coronavirus for a second time, while having already exhausted the leave entitlements under the FFCRA, state leave laws and the employer’s PTO policy. Employers should be prepared to face this new obstacle, particularly as cases in the U.S. are not abating.


Mark A. Konkel is a partner and co-chair of the labor and employment practice group at Kelley Drye & Warren LLP.

Maria B. Biaggi is an associate at the firm.

Nicholas J. Kromka is an associate at the firm.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

8 Questions Employers Should Ask About Reopening

Article was originally posted on HBR. To get all of HBR’s content delivered to your inbox, sign up for the Daily Alert newsletter.

In early March, when we published our HBR article “8 Questions Employers Should Ask About Coronavirus,” there were fewer than 100,000 cases and 4,000 deaths globally. Now, not quite three months later, infections exceed 5.5 million and employers face a whole new set of questions as they consider how to reopen the workplace after weeks or months of restrictions. As always, employers must remain nimble, and play close attention to local conditions and changing guidelines and practices. Here are eight questions they must now address.

  1. When is the right time for employees to return?

According to a survey of 854 U.S. employers we completed in early April, 42% reported that the majority of their workforce could work remotely — compared to just 14% before the pandemic. Employers now want to know when and how to bring many of their remote employees back.

The World Health Organization recommends that nonessential workers return when there is a sustained decrease in community transmission, a decreased rate of positive tests, sufficient testing available to detect new outbreaks, and adequate local hospital capacity to accommodate a surge of new cases should that occur.

Companies should be prepared to adopt different timetables for different geographies depending on local circumstances. They will do well to prioritize opening workplaces where work cannot be sustainably performed remotely, where there is high demand for the workplaces’ output, and where redesigning the space to allow for physical (social) distancing requires few changes.

  1. Who should return to the workplace?

Not everyone, and not all at once.

It’s best to have workers return gradually, which allows for lower density, making physical distancing less of a challenge. Maintaining a partially remote workforce also facilitates stress-testing physical or workflow changes to minimize disruption as more employees return to the workplace over subsequent weeks and months.

We suggest that workers at highest risk for complications of Covid-19 — those over 60 and those who are obese, have chronic lung or heart disease, diabetes or kidney disease — remain remote where possible until the amount of community transmission is very low. We also suggest that employees with children at home and who lack alternative child care, and employees for whom transport could pose a significant risk of exposure, should be encouraged to continue to work remotely if possible.

One option which can help avoid discrimination is for employers to simply allow employees to state they are uncomfortable returning to the workplace, without asking whether this is due to age, chronic disease, transportation concerns or child care.

  1. How can we protect employees who come to work?

The most important protection in the workplace is to effectively exclude those at highest risk of transmitting the disease. Forty-five percent of employers in our survey reported using thermal scanning to identify employees with fevers and exclude them. In the U.S., the Equal Opportunity Employment Commission (EEOC) has determined that during the pandemic employers may require employee temperature checks or testing without violating the Americans with Disabilities Act. Since most people do not have a fever when they first get sick with Covid-19, it is essential to couple scanning with questioning of returning employees, e.g., asking them whether they have a known exposure, a sick family member at home, or other symptoms including cough, shortness of breath, chills, muscle pain, sore throat, or new loss of taste and smell. Many companies will restrict visitor access to the workplace to reduce the potential for exposure.

Some employers are using a mobile app or web form to ask these questions; others use signage in the workplace. Employers can exclude employees who answer affirmatively at their discretion, and we recommend opting for more rather than less exclusion in the early days of reopening. Bear in mind that that employees with paid sick leave are less likely than those without it to come to work when they are ill. While sick-leave policies may be expensive, the cost of inadvertently allowing infected employees into the workplace may well be higher.

The Centers for Disease Control and Prevention recommends cloth masks for those who will come within six feet of others, and we recommend that employers require and provide masks for returning workers. Masks can be uncomfortable and must be removed for eating or drinking, but they provide some protection against spread of respiratory disease. Employers should explain that the mask is not to protect the wearer, but rather to protect co-workers. Handshakes are not coming back any time soon, and even elbow bumps don’t allow for the recommended physical distancing.

The workplace — whether it’s cubicles, an open workspace or an assembly line — should be arranged so that employees can remain at least six feet apart. Standing in lines should be abolished where possible; if a line is required such as at a cafeteria cash register, mark out 6-foot intervals to avoid crowding. (In the cafeteria, salad bars and finger food could promote spread of the virus; individually wrapped foods are safer.) More employees will eat at their desks, and companies can use sign-up sheets to decrease congestion in shared kitchens. Companies should continue to encourage hand-washing.

Companies should set capacity limits on conference rooms to allow six-foot spacing; if a meeting is too large for the available room, some participants should call in even if they are in the building. Plexiglass dividers can help prevent coronavirus spread in manufacturing, lobby, and retail settings.

Ninety-seven percent of companies in our survey reported enhancing their cleaning and disinfection, as well as increasing access to hand and surface sanitizers. While there is new evidence that the risk of virus transmission from surfaces is low, employees or cleaning staff should use disinfectant wipes regularly on shared surfaces such as vending machines or drink dispensers or shared printers, and employees should not share office equipment such as keyboards or phone headsets. Water fountains and ice machines can spread virus and should be turned off. Companies should also disable jet driers in bathrooms, which may disperse virus particles, and supply paper towels instead.

Finally, if an employee in the workplace is found to have Covid-19, companies must inform those who might have been exposed to him or her at work during the two days prior to symptoms. Those coworkers will need to be excluded from the workplace and self-quarantine. Employers must also maintain the infected employee’s confidentiality by not sharing their name.

  1. What role can testing play in making workplaces safer?

Testing can currently play only a small role in ensuring a safe return to the workplace. Right now, tests are expensive, in short supply and not accurate enough. Tests for current infection have low sensitivity rates (that is, they yield false negatives), so a negative test alone isn’t adequate to ensure that a worker is not contagious. However, testing can be useful in helping to identify asymptomatic coworkers at workplaces where there has been a known exposure. Point of care machines that yield “rapid” results can only process a handful of tests an hour, and nasal swabbing in the workplace could itself cause disease spread. Antibody tests, which require a blood sample, have a high rate of false negatives for current infection, and false positives for past infection. Further, after a person recovers from infection, it’s not clear that a positive antibody test indicates that they will be immune from future infection.

  1. What should we do if we discover an infected employee in the workplace?

Many have few or no symptoms early in a Covid-19 infection, and it’s likely that many workplaces will have an exposure despite the employer’s best efforts. As discussed, an employee or visitor with suspected Covid-19 should immediately leave the workplace and be advised to seek testing or medical attention. Areas used by the ill person for prolonged periods in the last week should be cordoned off and disinfected after allowing 24 hours for respiratory droplets to settle. Increasing air exchanges or opening windows can also reduce risk.

Employers should identify any employee who spent more than 10 minutes within six feet of the infected person during the two days before symptoms began, and those employees should also leave the workplace, self-quarantine, and monitor for symptoms until 14 days after their last exposure. Employees who have had passing contact, such as in a hall or an elevator, need not self-quarantine. Some exposed critical infrastructure workers such as transportation and health workers can return to work after exposure using masks and physical distancing along with heightened disinfection of their workspaces.

  1. When can employees return to business travel?

International business travel is unlikely to rebound until after this pandemic has receded. Many countries, if they allow international arrivals, require 14 days of quarantine, and business travelers might be quarantined again on return home. International business will continue to use teleconferences and videoconferences for many months to come, and travel will only resume substantially when there is a vaccine, effective treatment, or herd immunity.

Domestic travel will also remain limited in the coming months. Local areas that have new outbreaks will likely restrict movement, and a business traveler to such a region could be stranded there for weeks or months. Travel by personal car will come back first as this does not involve risk of exposure to others. Travel by train, bus, and airplane will take longer to return, and when it does business travelers are likely to encounter limited schedules that could increase travel time. When necessary, travelers can stay in hotels as most have ramped up their cleaning and disinfection; however, it’s still wise to use disinfectants on surfaces. Business leaders must clearly communicate and enforce company travel guidelines as they evolve.

  1. How can we meet employees’ growing mental and emotional health needs?

Many have suffered profound losses during the pandemic and have not had sufficient opportunity to grieve. Almost all of us have experienced loneliness. There will be more cases of anxiety and depression, and some survivors and their families will have post-traumatic stress syndrome. Access to mental health services was often poor before the pandemic, and needs will be greater now. Employers must step up to this challenge.

Most employers in our survey (58%) report increasing access to tele-behavioral health such as audio or video therapy sessions, while 83% report increasing communication about Employee Assistance Programs. Some types of cognitive behavioral therapy can be effectively delivered via mobile app, and we anticipate increased used of digital solutions to address some mental health needs. Some employees benefit from mindfulness and mediation programs, and the value of online programs has increased.

Employers can also establish virtual social networks to address isolation, and train supervisors to identify employee mental health needs in the remote workforce and make appropriate referrals. Consideration of family and child care responsibilities and encouraging exercise and time away from work also helps support employees’ emotional health.

  1. How should we communicate around return to the workplace?

False and unfounded rumors can spread as fast as a virus, and companies need to earn the trust of their employees through frequent and accurate communications. Companies should address employee concerns about the safety of returning by focusing communications on the actions being taken to protect them, including workplace cleaning, screening policies, and changes being made to allow social distancing. This information should be shared in regular pushed communications such as email, as well as through the company intranet and human resources sites.

Visual communication about appropriate behavior is also important. Companies should retire stock photos of employees who are clustered tightly together. They should also avoid images of people wearing medical-grade protective gear such as face-shields or N95 masks in non-clinical workplace surroundings as these remain in short supply and are not recommended.

Finally, because pandemics can incite xenophobia, bias and stigma, leaders should be alert to the potential for some groups or individuals to be stigmatized, and speak out against it. Hate crimes against Asians, for example, have increased with the current pandemic, much as African Americans were wrongly blamed for spread of the 1918 influenza pandemic. Our survey showed that 47% of companies are currently taking actions to reduce stigma during this pandemic, and 21% are planning to take such actions; still, almost a third of respondents have no such plans. Unconscious bias and anti-discrimination communication and training are key elements of diversity and inclusion strategies, and their importance is even greater now.

Covid-19 is a fast-moving virus and its impact on organizations and the world has been strong and swift. The practices outlined above will not only help protect employees, the community and company reputation, but also position companies for a smoother transition as they arrange return to the workplace.

If our free content helps you to contend with these challenges, please consider subscribing to HBR. A subscription purchase is the best way to support the creation of these resources.

Jeff Levin-Scherz, MD, MBA, is a managing director and co-leader of the North American Health Management practice at Willis Towers Watson. Jeff trained as primary care physician, and has played leadership roles in provider organizations and a health plan. He is an Assistant Professor at the Harvard TH Chan School of Public Health.

Deana Allen RN, MBA, is a senior vice president of the North America Healthcare Industry practice and serves as the Intellectual Capital and Operations Excellence leader at Willis Towers Watson. In addition to work as a clinician she has served as a health system corporate director of risk and insurance and healthcare consultant.

Functioning in the capacity of an employer of others has always held its challenges.  Excelling in this roll during a global pandemic brings a whole new layer of complexity.  During this time, your Employment Practices can define you.

To hear more about the impact on Employment Practices Liability due to COVID-19, please join NAPEO’s EPLI Webinar, this Thursday July 16th, 12pm ET. Libertate’s own President, Paul Hughes, will be moderating. To register, click here.

Beazley Speaks on EPL Changes for Businesses Affected by COVID-19

There has been a lot of discussion as of late regarding the impact of COVID-19 on Workers’ Compensation, Business Interruption, Health Benefits, etc., but what about Employment Practices Liability?  Below is a great overview of the ever changing landscape of EPL due to COVID from our friends at Beazley.

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Around the world, governments responded to the COVID-19 pandemic in March 2020 by implementing various restrictions on the movement of people through quarantines, lock-downs, stay at home orders, and other similar measures.  Businesses, particularly those in the service and retail industries, were most affected by these measures.  People were staying home, which meant no customers:  No diners at restaurants.  No shoppers in the malls.  Nobody getting haircuts, manicures, pedicures, or massages.  Many of the affected businesses have either announced permanent or indefinite closures or reduced service, and consequently, have had to furlough, layoff, or permanently terminate the employment of hundreds of thousands of employees.

 

Many businesses with financial difficulties are Client Companies of PEOs.  As a result, with both new and old Claims, Beazley has noticed an increase in Client Companies unwilling or unable to pay amounts for defense or indemnity within their SIR.  For Client Companies facing an uncertain financial future, they are unwilling to engage in settlement negotiations or mediation.  Rather than committing their limited resources to settlement, Client Companies want to preserve or use those funds to keep their businesses running by paying employees and other overhead expenses that remain despite reduced business income.  Unfortunately, there are also some Client Companies whose businesses will not survive; and they are simply unable to fund amounts of settlements within their SIRs.  There is no one size fits all solution.  All Insureds have differing limitations; and Beazley has been working collaboratively with its PEOs and Client Companies Insureds to strategize the best approach to resolving each claim in this COVID-19 environment.

 

Moving forward, Beazley anticipates more COVID-19 related claims including:

 

  • Claims for violations of the Family Medical Leave Act (FMLA) and/or the Families First Coronavirus Response Act (FFCRA) for discrimination, retaliation, wrongful termination, or failure to rehire for voicing concerns or making requests regarding COVID-19, missing work to recover from (or care for another with) COVID-19, etc.
  • General notices of mass layoffs or reductions in force.  (Note:  Typically, coverage is unavailable, but in certain circumstances, an Employment Event sublimit coverage may be available.)
  • Third Party Discrimination against persons of Asian descent.

 

As part of the renewal process, Beazley is considering PEOs and Staffing Firms’ strategies to addressing COVID-19 and the COVID-19 induced recession.  Some of Beazley’s questions are:

 

  1. Does the PEO work with their Client Companies to ensure they have an effective Business Continuity Plan for COVID-19?
  2. What protocols do the PEO and their Client Companies have if worksite employees are or were infected with COVID-19?
  3. Are Client Companies required to consult with the PEO before any terminations, and layoffs, reductions in force, or downsizing?
  4. What support does the PEO provide their Client Companies with to comply with employment laws, including the FMLA and FFCRA?
  5. Does the PEO offer advice to their Client Companies regarding worksite employees working from home?

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To hear more about the impact on Employment Practices Liability due to COVID-19, please join NAPEO’s EPLI Webinar, this Thursday July 16th, 12pm ET. Libertate’s own President, Paul Hughes, will be moderating.

https://www.napeo.org/events/events-calendar/town-hall-series

The New Normal….Pandemic Insurance Products

It was only a matter of time before insurers began to develop products to cover pandemics.  The products range from traffic monitor apps that pay insureds based on a minimum threshold to relapse coverage that protects businesses forced to shut down a second time.  The complete article from Reuters is below.

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Insurers are creating products for a world where virus outbreaks could become the new normal after many businesses were left out in the cold during the COVID-19 crisis.

While new pandemic-proof policies might not be cheap, they offer businesses from restaurants to film production companies to e-commerce retailers ways of insuring against disruptions and losses if another virus strikes.

The providers include big insurers and brokers adding new products to existing coverage, as well as niche players that see an opportunity in filling the void left by mainstream firms that categorize virus outbreaks like wars or nuclear explosions.

Tech firm Machine Cover, for example, aims to offer policies next year that would give relief during lockdowns. Using apps and other data sources, the Boston-based company measures traffic levels around businesses such as restaurants, department stores, hairdressers and car dealers.

If traffic drops below a certain level, it pays out, whatever the reason.

“This is the type of coverage which … businesses thought they had paid for when they bought their current business interruption policies before the coronavirus pandemic,” the company’s founder Inder-Jeet Gujral told Reuters.

“I believe this will be a major opportunity because post-COVID, it would be as irresponsible to not buy insurance against pandemics as it would be to not buy insurance against fire.”

The company is backed by insurer Hiscox and individual investors, mostly from the insurance and private equity world.

Restaurants in Florida’s Miami-Dade County, where Mayor Carlos Gimenez on Monday ordered dining to shut down soon after reopening, are now reeling, said Andrew Giambarba, a broker for Insurance Office of America in Doral, Florida.

“It’s been like they made it to the ninth round of the fight and were holding on when this punch came out of nowhere,” said Giambarba, whose clients include restaurants that did not get payouts under their business interruption coverage.

“Every niche that is dealing with insurance that is affected by business interruption needs every new product they can have.”

Filling the Void

Pandemic exemptions have helped some insurers emerge relatively unscathed and the sector has largely resisted pressure to provide more virus cover. Indeed, some insurers that paid out for event cancellations and other losses have removed pandemics from their coverage.

British risk managers association Airmic said last week that the pandemic had contributed to a lack of adequate insurance at an affordable price and most of its members were looking at other ways to reduce risk.

To help fill the void in a locked-down world, Lloyd’s of London insurer Beazley Plc, started selling a contingency policy last month to insure organizers of streamed music, cultural and business events against technical glitches.

“These events are completely reliant on the technology working and a failure can be financially crippling,” said Mark Symons, contingency underwriter at Beazley.

Marsh, the world’s biggest insurance broker, has teamed up with AXA XL, part of France’s AXA, and data firm Arity, which is part of Allstate, to help businesses such as U.S. supermarket chains, restaurants and e-commerce retailers cope with the challenges of social distancing.

With home deliveries surging, firms have hired individual drivers to meet demand, but commercial auto liability insurance for “gig” contractors with their own vehicles is hard to find.

Marsh and its partners devised a policy based on usage with a price-by-mile insurance, which can be cheaper than typical commercial auto cover as delivering a pizza doesn’t have the same risks as driving people around.

“Even when the pandemic is over, we believe last-mile delivery will continue to grow,” said Robert Bauer, head of Marsh’s U.S. sharing economy and mobility practice.

A report by consultants Capgemini showed that demand for usage-based insurance has skyrocketed since COVID-19 first broke out and more than 50% of the customers it surveyed wanted it.

However, only half of the insurers interviewed by Capgemini for its World Insurance Report said they offered it.

Bespoke Cover

Since businesses are only now learning how outbreaks can affect them, some new products are effectively custom-made.

Elite Risk Insurance in Newport Beach, California, has been offering “COVID outbreak relapse coverage” since May for businesses forced to shut down a second time, its founder Jeff Kleid said.

The policies are crafted around specific businesses and only pay out when certain conditions are met, Kleid said.

For film and television production companies that could be when a cast member contracts the virus, forcing them to stop shooting. Another client, which raises livestock for restaurants, is covered for a scenario in which it would be impossible to get animal feed.

Such policies do not come cheap. A $1 million policy could cost between about $80,000 to $100,000 depending on the terms.

“The insurance … is costly because it covers a risk that does not have a historical basis for calculating the price,” Kleid says.

And in March, when COVID-19 ravaged northern Italy, Generali’s Europ Assistance offered medical help, financial support and teleconsultations for sufferers when discharged from hospital, on top of regular health insurance.

It sold 1.5 million policies in just two weeks and now has 3 million customers in Europe and United States.

Some insurers are also working on changes to employee compensation and health insurance schemes. With millions of workers not expected to return to offices anytime soon, some large insurers in Asia are preparing coverage to account for that, according to people familiar with those efforts.

At least one Japanese insurer has started work on a product to cover employees for injury while working at home, they said.

“Working from home will be the new normal for years to come. That would make the scope of the employee compensation scheme meaningless if a person suffers an injury while at home,” said a Hong Kong-based senior executive at a European insurer.

(Reporting by Noor Zainab Hussain in Bengaluru, Suzanne Barlyn in Washington Crossing, Pennsylvania, Carolyn Cohn in London and Sumeet Chatterjee in Hong Kong; additional reporting by Muvija M; Editing by Tomasz Janowski and David Clarke)

https://www.insurancejournal.com/news/international/2020/07/10/575081.htm