Managing COVID-19 Employment Practice-Related Exposure

We found this article, made available by Insurance Journal, most informative. The original content can be accessed by clicking here.

This post is part of a series sponsored by The Hanover Insurance Group.

As the pandemic continues, we’re seeing new COVID-19-related regulations, restrictions and advisories issued and adjusted by federal, state, and local officials on a regular basis. Each jurisdiction can create and enforce its own laws, leaving many employers faced with varying—and at times conflicting—orders and guidance. This creates a decision point for employers. Which should they follow? And, how can that decision impact their business?

From decisions about workplace safety, such as personal protective equipment, visitor policies and vaccine requirements, to handling work-from-home, family, and medical leave requests, there are a lot of business issues to sort through and a great deal of exposure, which could leave them open to the threat of an employment-related lawsuit. As trusted advisers to these businesses, independent agents can help guide their clients through the maze of regulations and guidance, sharing thoughtful risk management practices and key coverages to evaluate.

Growing threat of litigation

More than 2,000 COVID-related employment lawsuits have been filed already, and the number is expected to grow as businesses respond to ever-evolving circumstances. Business leaders can prepare by educating themselves and seeking out resources and guidance to navigate health, safety, and economic issues. Whether it’s subsequent waves, a change of jurisdictional guidance and/or regulations, or the availability of a vaccine, forward -thinking leaders will be well prepared to understand the options and their impact and make informed, proactive decisions.

With the pandemic, employers should be especially mindful of the following types of employment practice claims:

  • Workplace safety: Allegations of failure to provide a safe working environment
  • Discrimination: Allegations of age and disability bias in employment termination
  • Wage and hour: Allegations of failure to pay non-exempt employees for remote work or time spent completing employer-mandated COVID-19-realted health and safety activities, such as daily screenings
  • Retaliation: Allegations of retribution for complaints about workplace safety or use of medical leave

Thoughtful risk management

With questions like ‘can employees be required to get a COVID-19 vaccine?’, ‘how do we manage continued work-from-home requests?’, ‘what accommodations should be made for employees with disabilities?’, and ‘how do we address employees’ workplace safety concerns?’, it can be difficult for businesses to know where to start. Independent agents can play an important role in helping their clients think critically about their risks and take proactive steps. Similarly, top insurance carriers understand this, and have acted to provide employers with guidance and services that can help them minimize the risk of litigation.

For example, The Hanover has negotiated agreements with leading labor and employment practices firms to offer a range of services to Hanover policyholders that can help reduce the risk of employment practice lawsuits related to COVID-19. These value-added services are offered to policyholders no cost, or at a significant discount, such as:

Holistic insurance solution

  • COVID-19 return-to-work guide, including a robust testing and screening guide, sample policy language and detailed guidance on workplace safety, disability accommodations, and more
  • Family First Coronavirus Response Act compliance assistance, including sample policies, template forms, a flowchart for managing requests and attorney consultation
  • COVID-19 online training module for employees on personal hygiene practices and more
  • A COVID-19 customer information center with key information from the CDC, EEOPC, and state-specific resources

Beyond risk management, agents can help their clients by partnering with insurance carriers that offer employment practices liability insurance that can be tailored to the needs of each business.

As businesses wonder if they have adequate insurance protection, agents can help them understand their coverage and identify possible risk areas by considering these three important factors:

  1. Definitions: As agents know, not all definitions are created equal. Carefully assess definitions of wrongful acts to ensure a business’s unique risks are covered.
  2. Who to cover: Ensure coverage applies to the acts of all individuals who work at the organization. For example, does the business use contractors?
  3. Key coverage provisions: These should include punitive damages where insurable, and coverage for Equal Employment Opportunity Commission or state equivalent proceedings.

As the COVID-19 pandemic continues to evolve, employers face increasing risks from employment-related lawsuits. Fortunately, agents can play an important role in guiding their business clients to risk management practices and coverages that help best protect their operations, their interests, and their employees.

Reminders for you New Year’s Celebrations

Yet another post about Covid-19 safety, but this is our new normal so here we go! With the close of 2020 and all of its wonderful tidings (pun-intended), how do we safely celebrate the Hope of the New Year without bringing additional risk of Covid-19? The CDC has some pointers, check out this link for their article on “Holiday Celebrations and Small Gatherings.”

In Summary

If possible stay within your Risk Pod! Your Risk Pod are those that have been part of your pandemic social group and have been taking measures to reduce the spread of the virus. People that have not been a continued part of your Risk Pod add different levels of risk for exposure.

Covid-19 is mostly spread through respiratory droplets through talking, coughing or sneezing. Find out how people have been feeling before you open your home; don’t be afraid to monitor for fevers before entry.

This virus is also known to be of spread concern through contaminated surfaces and then contact made via nose, mouth or eyes. Keep cleaning supplies nearby and use them regularly.

If your celebration is a must try and schedule for an outdoor function where people can practice social distancing. Make sure ample access for hand washing is available.

Back in May of 2020 the R Naught or reproduction number (R0) of Covid-19 was between 2 and 3 for the United States meaning for each 1 person infected the virus, on average, can be spread to 2 or 3 additional people. As of December 7th the United States was reporting R0 between 1 and 1.25. We saw spikes in new cases in November. For more Covid-19 tracker information check out Covid19-projections. There is a great amount of machine learning visuals and information on the virus here.

Whatever your celebratory activities are to ring in 2021, we at Libertate Insurance hope you Have Fun and Stay Safe! Don’t kiss strangers at the Drop of the Ball! Keep your Mask On!

Celebrating Holidays Safely During the COVID-19 Pandemic

‘Tis the season for holiday planning. Yet, gatherings of families and friends, crowded parties and travel may put Americans at an increased risk for COVID-19. The Centers for Disease Control and Prevention (CDC) recommends that you carefully consider the spread risk of in-person holiday celebrations. Several factors contribute to COVID-19 spreading in group settings. Those include community spread of the coronavirus, event location, event duration, quantity of attendees and the locations where attendees are coming from. It’s also important to consider attendees’ behavior both prior to the gathering and during the celebration.

Before a Gathering

If you choose to attend an in-person event, consider the following tips prior to the gathering:

  • Check whether the host has steps in place to prevent the spread of the coronavirus.
  • Bring along supplies like extra masks, tissues and alcohol-based hand sanitizer.
  • Avoid contact with people outside of your household for 14 days before the gathering.
  • Also, it’s important to stay home if you do not feel well or are at a higher risk for serious complications from COVID-19.

During a Gathering

Consider the following tips from the CDC to reduce your risk of being exposed to, contracting or spreading COVID-19 during an in-person event:

  • Maintain a distance of at least 6 feet from people you don’t live with—and be mindful in areas where it may be harder to do so, such as restrooms and eating areas.
  • Wear a mask at all times when around people who don’t live in your household.
  • Limit contact with commonly touched surfaces or shared items.
  • Wash your hands often with soap and water. If soap and water are not readily available, use a hand sanitizer that contains at least 60% alcohol.

If you want to celebrate the holidays as safely as possible this year, consider celebrating virtually or with members of your own household.

Give Your Holiday Baking Recipes a Makeover

Food is part of holiday traditions, and your family likely looks forward to certain recipes. Luckily, there are some simple substitutes to make your favorite holiday recipes a bit healthier. Consider the following tips to transform your recipes without sacrificing flavor:

  • Fat—For baked goods, use half the butter or oil and replace the other half with unsweetened applesauce or mashed banana.
  • Salt—If baked goods don’t require yeast, you can reduce salt by half.
  • Sugar—Reduce the amount of sugar by one-third to one-half. Instead, add spices like cinnamon, cloves, allspice and nutmeg—or flavorings such as vanilla or almond extract to boost sweetness.

Get creative and experiment with other ways of creating healthy recipes for your most beloved holiday tradition.

Are You Getting Enough Water?

To prevent dehydration, you need to consume adequate amounts of fluid. Dehydration can increase your risk of illnesses and cause health problems, such as fatigue and muscle weakness. According to new guidelines, men should get about 3.7 liters (15 ½ cups) of fluids each day, and women need about 2.7 liters (11 ½ cups). Remember that the water content of the foods you eat counts as well. You need to get enough water for your body to operate at its best. Make water your beverage of choice, and consider
these simple tips to help achieve your daily water intake:

  • Drink a glass of water with each meal and between each meal.
  • Hydrate before, during and after exercise.
  • Carry a reusable water bottle with you for easy access during the day.
  • Choose sparkling water instead of alcoholic drinks or soft drinks.

Spicy Baked Squash

  • vegetable cooking spray
  • 1 acorn squash
  • 1 dash salt
  • 2 Tbsp. margarine
  • 3 Tbsp. brown sugar
  • 1 tsp. cinnamon
  • ¼ tsp. nutmeg
  • ¼ tsp. ginger

Preparations

Preheat oven to 400 F. Coat the baking sheet with vegetable cooking spray. Wash the squash. Cut it in half lengthwise and remove the seeds. Cut the squash into ½-inch slices. Place the squash on the baking sheet and sprinkle with salt. Melt the margarine on low heat in a small saucepan. Add brown sugar, cinnamon, nutmeg and ginger to the saucepan. Spread the margarine mix on the squash. Bake 20 to 25 minutes, or until tender.

Makes: 4 servings. Each serving provides 122 calories, 6 g of fat, 1 g of saturated fat, 1 g of protein, 91 mg of sodium, 19 g of carbohydrates, 7 g of total sugars and 2 g of fiber.

Source: U.S. Department of Agriculture (USDA)

Happy Holidays from Libertate Insurance Services!

Employee Skills for the Post-pandemic Workplace

As the COVID-19 pandemic abruptly changed workplaces, workers’ skills have changed as well. Job skills were evolving before the pandemic, but it has prompted more change in a much quicker manner.

In fact, the number of skills required for a single job is increasing by 10% per year, according to Gartner data. In response, organizations should embrace a dynamic approach to reskilling talent in order to shift vital employee skills and help develop skills as they become relevant and necessary. Consider skills necessary to thrive in an organization, especially in relation to company modifications like remote work or operations changes.

As organizations move from their initial pandemic response plans to more sustainable operations, this article provides critical worker skills for companies to foster with both candidates and current employees.

The Skills

The skills mentioned in this section were important before the pandemic, but may not have been prioritized by many organizations. Consider pursuing and supporting the following proficiencies for potential and current employees:

  • Adaptability—Just as an organization may have quickly adapted to new ways of working and communicating, the willingness and capability to adapt will rise to the top of desired employee skills. The goal for employees is to remain functioning even when forced out of their comfort zone. If employees can excel in those environments, even better. Encourage current employees to take on stretch roles to build this skill.
  • Communication—Communication is not a new in-demand skill, but now needs to extend across platforms. Many organizations have deployed videoconferencing or collaboration tools to facilitate communication inside and outside the company. With employees working remotely, communication skills are critical for emails and virtual meetings. The goal remains to be effective and efficient, and valuable employees will be able to communicate clearly and concisely with all stakeholders. Communication is still happening, just through different channels.
  • Digital capabilities—As the world and workplace rely more on digital assets, digital skills—including programming, design, writing and coding—will be even more vital to success. The workforce should evolve as well and be comfortable with digital platforms. Tying into the communication aspect above, an employee should be open to using digital communication platforms at work and know when to use certain platforms. Organizations may invest in a variety of digital platforms to facilitate communication among employees, clients, vendors and other stakeholders. Find what’s relevant based on the company’s industry, and focus on new digital tools and skills that best support the company, clients and co-workers best.
  • Emotional intelligence—Emotional intelligence (EI) is central to both personal and professional life. It’s the capacity to differentiate, evaluate and respond while recognizing both one’s emotions and the emotions of others. EI is often a sought-after skill for leadership roles, but it is relevant in today’s workplace for all roles. Employees with higher EI typically navigate the workplace more effectively and are more resilient. The following components of EI can have a positive impact on a post-pandemic workplace:
    • Empathy is the ability to understand and feel for others, and therefore relate to them better.
    • Motivation is the ability to use internal resources to perform and strive toward goals.
    • Self-awareness is the ability to recognize and understand one’s behaviors and emotions.
    • Self-regulation is the ability to be in control of one’s emotions, and therefore responses.
    • Social skills are the ability to build and maintain relationships, manage conflict and work with others.

Organizations can seek out and hire candidates who strongly demonstrate these skills, but what can they do with their current workforce? Consider pushing current employees to convey or demonstrate these skills in order to leverage more work opportunities within the company. Depending on the role, that may be done through accomplishments or data. Just as organizational leadership can stay relevant by shifting to support market needs, the same flexible mindset should be present and practiced among the workforce.

Comment below on other crucials skills workers’ should possess in a post-Covid world.

Layoff Considerations and How to Prepare for Potential Claims

Layoffs are an unfortunate reality for many businesses. Whether a layoff is planned or unplanned, a business can suffer major reputational harm or even be taken to court following a large-scale termination.

In fact, it’s not unheard of for layoffs (and even just the threat of layoffs) to increase workers’ compensation claims, particularly in a tight job market. This is because individuals faced with a loss of income, temporary unemployment benefits and the likelihood of unaffordable health insurance may look to workers’ compensation as a way to sustain their income.

Although employers must never attempt to stop any individual from filing a workers’ compensation claim (legitimate or otherwise), there are steps you can take to help minimize your business’s liability for future claims.

Communicate With Your Insurance Carrier and Legal Professionals First and foremost, it’s crucial that you let your insurance carrier know about any downsizing plans. This is because your carrier can provide tips for dealing with any workers’ compensation claims that may follow the downsizing.

Working closely with a legal professional can also help you understand the relevant workers’ compensation laws in your jurisdiction.

If a claim does arise, you should immediately report any suspicions you have about the claim —along with all the reasons for your suspicions—to both your workers’ compensation carrier and legal professionals. The earlier you voice concerns, the more opportunities you’ll have to investigate the claim, gather medical evidence and discuss defense strategies.

Have Strong Reporting and Investigation Procedures in Place

Workers’ compensation claims are not often decided by a singular bit of information or evidence. Rather, employers must cover multiple angles in order to defend against questionable claims effectively.

For instance, employers could provide documentation of anecdotal evidence (e.g., no one saw the individual get hurt). Objective evidence (e.g., an independent medical exam’s X-ray or MRI) is also important for a strong defense. To help gather this kind of evidence and stay ahead of potential claims, accident reporting and investigation is crucial.

Regularly revisit your accident reporting policies, and require all employees to report accidents immediately, no matter how minor. Following a reported incident, you should investigate immediately. Consider separating witnesses from each other in order to get an accurate picture of what happened. Document these incidents and investigations thoroughly, and secure witness statements and signatures whenever possible.

Finally, as part of an employee’s exit interview, you should consider having the employee sign a form stating whether he or she has been involved in any unreported accidents or hazardous exposures while on the job. This can help you defend against unexpected claims that arise after a layoff.

Maintain Strong Recordkeeping Practices

When it comes to combating questionable future claims, accurate recordkeeping can make all the difference. Above all, employers need to know where employee records are kept and should secure photocopies of them as backups. Employers should also:

  • Assign a trustworthy employee to oversee employee records. This individual should be able to provide and explain these records in court.
  • Maintain a photographic or video record of your premises. This can help illustrate the conditions of your building and workspaces in the event of a claim.
  • Consider using and keeping records of termination interviews in order to help determine the risk of any future workers’ compensation claims. You may also want to consider performing termination physicals, as these can be useful in case an employee files a claim after being laid off. Specifically, these physicals can help establish an employee’s health and fitness at the time their employment ended.

Finally, employers should ensure employee records are not destroyed, since payroll, schedules and accident reports may become vital evidence.

Invest in Employee Assistance Programs

Terminations can put employees in an antagonistic frame of mind, which can lead them to bring questionable claims that they wouldn’t make otherwise. However, this risk may be reduced if an employer demonstrates that it cares about an employee’s well-being during an exit interview.

To accomplish this, many employers provide resume counseling, therapy and other services that demonstrate concern for a former employee’s welfare. These simple actions can ensure employees don’t take a layoff personally.

Watch for Risk Indicators

To better protect themselves, employers should be aware of certain indicators that they may be at risk of a future claim:

  • The employee is disgruntled after being fired or laid off.
  • The employee has been told his or her employment is about to end.
  • The employee is having financial difficulties.

It should also be noted that a lack of witnesses and medical evidence can indicate that a claim is questionable. Make note of these instances, as they can come in handy in the event of a claim.

Have a Strategy in Place

While employers must never attempt to prevent an employee from making a workers’ compensation claim, the above tips can assist in avoiding and defending against questionable claims. Employee reductions can pose a significant challenge for employers and are often devastating turns of events for employees. It is important for employers to have a layoff strategy broken down into goals and an action plan for the company.

For more workers’ compensations strategies and advice, contact Libertate Insurance Services today.

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/

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.