COVID 19 AND THE HOA WORKPLACE: BEWARE OF NEW LAWS!

March 30, 2020 01:42 PM
 
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COVID 19 AND THE HOA WORKPLACE: BEWARE OF NEW LAWS!

COVID 19 has been the impetus for many emergency, significant changes in federal employment law No matter how small the business, new legal obligations towards employees abound.The “HOA workplace” is no exception.

In an effort to help HOAs, COAs, and Co-Ops with COVID-19, the law firm of Kaufman, Dolowich Voluck (KDV) has prepared a general, but extensive overview for how associations should continue to operate their workplaces during this unique time. At the outset, we want to make clear that every city, county, and municipality could have various different executive orders in place. Thus, we urge all associations to consult local counsel for guidance as to their specific employment law obligations.

FAMILY & MEDICAL LEAVE ACT (FMLA)
To be eligible for Family and Medical Leave Act (FMLA) leave, an employee must work at a location that has 50 employees within a 75-mile radius. This so-called 50/75 rule can create confusion for employers that have 50 or more employees total but with no locations that have 50 workers within a 75-mile radius.

Generally, employees are not entitled to take FMLA to stay at home to avoid getting sick. As with many employment laws, the worst thing an employer (or as is often the case, an untrained supervisor) can do at times like this is to reject immediately an unorthodox leave request before the facts are in. When in doubt, the wisest approach is to work with counsel to ensure legal compliance, thereby minimizing exposure to costly litigation.

There is a new law, the Families First Coronavirus Response Act (FFCRA), which has amended and expanded the FMLA and, as such, is the principle reference to leave at this time.

FAMILIES FIRST EMERGENCY RELIEF ACT (FFERA)
The Families First Coronavirus Response Act (FFCRA), which has been signed into law, requires companies that employ less than 500 employees to pay 80 hours of sick leave and up to 12 weeks of family leave for employees who are required to stay home because of six specific Coronavirus Disease 2019 (COVID-19)-related reasons. Generally, the Act provides that employees of covered employers are eligible for:

  • Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
  • Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
  • Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19. 

    Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern. Currently, the DOL does not want any employers sending materials seeking this exemption.

TAX CREDIT FOR FFERA PAID SICK LEAVE
The tax credit allowed under the FFERA for the 80 hours of required paid sick leave depends on the reason the employee is out of work.

The maximum credit is $511.00 per day for an employee who is out of work because:

  • 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 medical diagnosis.

The maximum credit is $200.00 per day for an employee who is out of work because:

  • The employee is caring for an individual who is subject to a federal, state, or local quarantine order, or an individual who has been advised to self-quarantine due to concerns related to COVID-19;
     
  • The employee is caring for the employee’s son or daughter, if the child’s school or child care facility has been closed, or the child’s care provider is unavailable due to COVID-19 precautions; or
     
  • The employee is experiencing any other substantially similar condition specified by Health and Human Services in consultation with the Department of the Treasury and the Department of Labor.

FAIR LABOR STANDARDS ACT (FLSA)
On March 9, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division issued guidance for employees regarding their obligations to employees under the Fair Labor Standards Act (FLSA), in the wake of the Coronavirus pandemic (“the Guidance”). Below are some of the critical issues the Guidance addresses:

How many hours is an employer obligated to pay an hourly-paid employee who works a partial week because the employer’s business closed?
The FLSA generally applies to hours actually worked. It does not require employers who are unable to provide work to non-exempt employees to pay them for hours the employees would have otherwise worked.

If an employer directs salaried, exempt employees to take vacation (or leave bank deductions) or leave without pay during office closures due to influenza, pandemic, or other public health emergency, does this impact the employee’s exempt status?
Exempt, salaried employees generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions. The FLSA does not require employer-provided vacation time. Where an employer offers a bona fide benefits plan or vacation time to its employees, there is no prohibition on an employer requiring that such accrued leave or vacation time be taken on a specific day(s). Further, this will not affect the employee’s salary basis of payment so long as the employee still receives in payment an amount equal to the employee’s guaranteed salary. However, an employee will not be considered paid “on a salary basis” if deductions from the predetermined compensation are made for absences occasioned by the office closure during a week in which the employee performs any work. Exempt salaried employees are not required to be paid their salary in weeks in which they perform no work.

Therefore, a private employer may direct exempt staff to take vacation or debit their leave bank account in the case of an office closure, whether for a full or partial day, provided the employees receive in payment an amount equal to their guaranteed salary. In the same scenario, an exempt employee who has no accrued benefits in the leave bank account, or has limited accrued leave and the reduction would result in a negative balance in the leave bank account, still must receive the employee’s guaranteed salary for any absence(s) occasioned by the office closure in order to remain exempt.

PENNSYLVANIA UNEMPLOYMENT
Employees may be eligible if:

  • The employer temporarily closes or goes out of business because of COVID-19
     
  • The employer reduces your hours because of COVID-19
     
  • The employee has been told not to work because your employer feels you might get or spread COVID-19
     
  • The employee has been told to quarantine or self-isolate, or live/work in a county under government-recommended mitigation efforts.

OSHA
There is no specific OSHA standard covering COVID-19. Employees are only entitled to refuse to work if they believe they are in imminent danger. Section 13(a) of the Occupational Safety and Health Act (OSH Act) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” OSHA discusses imminent danger as where there is “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”

The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time, for example, before OSHA could investigate the problem. Once again, this guidance is general, and employers must determine when this unusual state exists in your workplace before determining whether it is permissible for employees to refuse to work.

OSHA prohibits employers from retaliating against workers for raising concerns about safety and health conditions. Additionally, OSHA's Whistleblower Protection Program enforces the provisions of more than 20 industry specific federal laws protecting employees from retaliation for raising or reporting concerns about hazards or violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, securities, and tax laws. 

AMERICANS WITH DISABILITIES ACT (ADA) (≥ 15 Employees)
Under the ADA, telework could be a reasonable accommodation the employer would need to provide to a qualified individual with a disability, barring any undue hardship.  However, an employer may instead offer alternative accommodations as long as they would be effective. 

During a pandemic health crisis, under the ADA an employer would be allowed to require a doctor’s note, a medical examination, or a time period during which the employee has been symptom free, before it allows the employee to return to work. 

Specifically, an employer may require the above actions of an employee where it has a reasonable belief – based on objective evidence – that the employee’s present medical condition would:

  • impair his ability to perform essential job functions (i.e., fundamental job duties) with or without reasonable accommodation, or;
     
  • pose a direct threat (i.e., significant risk of substantial harm that cannot be reduced or eliminated by reasonable accommodation) to safety in the workplace.

U.S. EEOC FAQ
How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?
During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?
Generally, measuring an employee's body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.

Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19? 
Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.

When employees return to work, does the ADA allow employers to require doctors' notes certifying their fitness for duty? 
Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.

If an employer is hiring, may it screen applicants for symptoms of COVID-19?
Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.  This ADA rule applies whether or not the applicant has a disability.  

May an employer take an applicant's temperature as part of a post-offer, pre-employment medical exam?
Yes.  Any medical exams are permitted after an employer has made a conditional offer of employment.  However, employers should be aware that some people with COVID-19 do not have a fever.

May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?
Yes.  According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace. 

May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?
Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.

ABOUT THE AUTHOR
Philip R. Voluk, Esq. is managing partner of Kaufman Dolowich Voluck's Blue Bell, Pennsylvania office. Kaufman Dolowich Voluck (KDV) is a premier national defense litigation law firm. KDV’s Labor and Employment Law attorneys have been following, educating, an counseling clients and friends alike regarding all of the new legal obligations employers are facing because of COVID-19. Please direct any questions or comments to Philip R. Voluck, Co-Chair of KDV’s Labor & Employment Law Practice Group.

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