Lifting Travel Restrictions

As the country slowly starts to reopen and travel restrictions begin to be lifted, it reminds me of how hard the travel industry has been impacted by COVID-19. Finding workers compensation coverage for this industry can be difficult due to the exposures associated with these risks. Libertate Insurance Services works closely with Beacon Aviation in placing coverage for this industry.  Beacon Aviation Insurance Services knows the ins-and-outs and provides workers compensation coverage for general aviation businesses.

Beacon’s Program offers the following:

Payment Options

  • Pay As You Owe
  • Carrier Direct Bill
  • Carrier Direct Debit
  • Credit Card

Endorsement Options

  • Foreign Voluntary Compensation
  • Voluntary Compensation
  • Waiver of Subrogation
  • Defense Base Act (DBA) Coverage
  • Employer Liability Coverage “Stop GAP”

If you need help placing your workers compensation with your travel or aviation risk, contact Jenny Bush, at jbush@libertateins.com. Click the link below for more details on Beacon’s Program.

Beacon Aviation Program Appetite

 

Report: COVID-19 Accounts for 1-in-9 California Workers’ Comp Claims in 2020

Wow — We are seeing a depletion of capacity/increased costs for health care and other “client-facing” industries.  The why —

“CWCI says that brings the total for the year to 41,861 claims, or 11.2% of all California job injury claims reported for accident year 2020. Those claims included 224 death claims, up from 160 reported as of Aug. 10.”

.005 of all claims in California are a COVID19 fatality year to date.  The unknowns are the reopens, adjusted reserves and longevity of the severe and critical patients.  Still much unknown –

September 28, 2020

The California workers’ compensation COVID-19 claim count continued to grow in August, albeit at a much slower rate than in July, with new data showing that as of Sept. 21, the state had recorded 5,130 COVID-19 claims with August injury dates, according to data compiled by the California Workers’ Compensation Institute.

CWCI says that brings the total for the year to 41,861 claims, or 11.2% of all California job injury claims reported for accident year 2020. Those claims included 224 death claims, up from 160 reported as of Aug. 10.

The latest claim count shows that the number of COVID-19 claims reported to the Division of Workers’ Compensation doubled from May to June, then increased another 16% in July. The numbers reported for August, however, fell sharply, even accounting for the lag in the reporting of COVID-19 claims, according to CWCI.

The CWCI projects there could ultimately be 8,208 COVID-19 claims with August injury dates. Given that the latest tally suggests COVID-19 claim volume may have peaked in July, CWCI is now projecting 48,086 COVID-19 claims with January through August injury dates, which is less than the January through July projection from last month.

CWCI reports that the distribution by industry shows health care workers continue to account for the largest share of California’s COVID-19 claims, filing 38.1% of the claims recorded for the first 8 months of this year, followed by public safety/government workers who accounted for 15.8%. Rounding out the top five industries based on COVID-19 claim volume were retail trade (7.6%), manufacturing (7.6%), and transportation (5.0%). In addition, the percentage of denied COVID-19 claims declined to 28.6% from CWCI’s May report of 35.5%.

Related:

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:

Should You Partner with A PEO? Can a PEO help your small business?

Understand the Importance of What PEOs are Doing for Their Clients; Consider what a PEO can offer your small business; Having a business relationship that benefits you!

Check out the article below to see how PEOs work to protect small business clients

_____________________________________________________________________

THE EXPANDING PEO WHEELHOUSE: HELPING SMALL BUSINESSES SURVIVE

COVID-19: STORIES OF ADAPTATION: HOW SERVICE & DELIVERY CHANGED

BY KATHRINA SALADRIGAS

Eighteen weeks have passed since we sent our first COVID-19 newsletter to Regis HR Group clients. Looking back, we could not have anticipated the scope of support our clients would need. In addition to inquiries about traditional human resources matters, we received an unprecedented number of questions about general business operations from employers, to the point of, “What can we do to survive?”

PEOs are uniquely positioned to help our local economies (and the country as a whole) recover from the pandemic, so here are some of things we hope all PEOs will implement to help their worksite employers overcome the challenges of the COVID-19 pandemic.

EMPLOYERS DESERVE A BETTER ANSWER THAN ‘THAT’S NOT WHAT WE DO’

Laws such as the Coronavirus Aid, Relief, and Economic Security (CARES) Act and the Families First Coronavirus Response Act(FFCRA) are being passed and subsequently changed at an extraordinary rate, so employers are reasonably overwhelmed:

  • What government-sponsored financial relief is available to our business?
  • How do layoffs and furloughs affect health benefits?
  • Is our business an “essential” business?
  • Who is eligible for sick leave under the FFCRA?
  • Do we have to close our facility if an employee tests positive? If yes, for how long?

This is a very small sample of the questions creating uncertainty and anxiety for business owners. While some of these questions are business-specific and can only be addressed by the employer’s legal counsel and/or tax professional, there are practical steps PEOs can take to support these employers without defaulting to “that’s not what we do:”

  • We’ve learned that monitoring regulatory changes and providing brief descriptions (one to three sentences) with links to the governing body in a timely fashion reassures clients that they have a trusted partner to lean on and reduces worries about missing something.
  • Similarly, sharing a finite list of well-researched government resources that consolidate information from multiple regulatory bodies (such as the Centers for Disease Control and Prevention (CDC) Resuming Business Toolkit​) saves employers time and reduces the incidence of misinformation.
  • We’ve learned that employers appreciate live interactive webinars where they can connect with employment lawyers and tax professionals. To this end, Regis HR Group has sponsored eight webinars (at no charge to PEO clients) with topics ranging from FFCRA requirements to Payroll Protection Program (PPP) loan forgiveness, with additional webinars scheduled in the upcoming weeks.
  • Perhaps most importantly, we’ve witnessed the significance of the human connection (albeit socially distanced). Our entire team, from our payroll specialists to our president, has proactively worked to check in with our clients and ask, “How can we help?” Often, the answer is not something in our traditional scope of services, but we’re committed to do what we can.

HELPING EMPLOYERS ADJUST TO THE ‘NEW WORKPLACE’

The pandemic has created a seismic shift in our traditional workspace. Whether or not this shift is temporary remains to be seen. In the meantime, however, employers are finding it difficult to adjust to the new workplace.

To help mitigate the stress that accompanies these significant changes, we have provided several tools to educate employers and their managers about how to get the most out of their employees in remote work environments, how to maintain employee morale, and how to continue to communicate effectively as a team.

Some employers find themselves in a position to reopen, but their pre-pandemic staff is refusing to return. We are helping these employers find qualified staff, often by connecting them with employees who have been laid off by other clients.

For clients that are hiring during this ordeal, we are sharing resources on interviewing best practices and, in particular, educating them about the importance of behavioral interview questions.

While it has long been commonplace to ask behavioral interview questions to assess a candidate’s problem-solving skills, resiliency, and adaptability in demanding/high-stress work environments (such as healthcare, investment banking, and hospitality), the pandemic has demonstrated that these skills are central to the success of every business.

To that end, PEOs should be encouraging employers to ask behavioral interview questions, in addition to assessing candidates on previous experience—because past behaviors can help predict future performance. Examples of behavioral questions include:

  • “Tell me about a chaotic situation you experienced in a professional setting.”
  • “Describe a time that, despite your best efforts, things did not work out as you had envisioned.”

FACILITATING REPORTS FOR PPP FINANCING & MEANINGFUL BUSINESS CONNECTIONS

Lenders participating in the Payroll Protection Program, which helped businesses across the United States maintain their workforces during the COVID-19 crisis, required employers to submit payroll reports quickly and accurately.

In addition to producing detailed payroll reports that included employee salaries, wages, commissions, cash tips, group health benefits payments, retirement benefits payments, state or local taxes, etc., Regis HR Group was able to help small businesses connect with local, community banks participating in the Small Business Administration’s PPP loan program.

Our clients thanked us for these introductions because community bankers were often more helpful with questions about PPP loans and more responsive than their counterparts working for national banks. Similarly, the community banks were thankful for the introductions because, prior to the pandemic, many of these employers had not considered partnering with a local bank for their routine banking and financing needs.

WE ARE IN THIS TOGETHER

COVID-19 remains a clear and present danger, but we are confident that working together, our country will overcome this crisis. We are motived by the dedication of our team and inspired to work harder each day to earn the gratitude of our clients.

Moving forward with the support of PEOs across the nation, we can serve our clients in new ways and emerge stronger from this pandemic.

KATHRINA SALADRIGAS

Marketing & Talent Acquisition Director

Regis HR Group

Miami, Florida

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

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.

______________________________________________________________________

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.

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