Your 15 Employment Related Coronavirus Questions Answered
An excellent question and answer article written by our friends at Danziger & Markhoff LLP, in conjunction with the employment attorneys at Jackson Lewis, deals with issues regarding employment, employees, layoffs, benefits etc.
As you are all well aware, these are uncertain times for not only the overall health and safety of our society, but for our clients’ businesses. Federal, state, and local governments are reacting daily to COVID-19 and the significant labor and employment issues we are facing. Specifically, New York passed a law focused to address sick leave and quarantined worker protection. The quarantine leave bill is one measure among several. Separately, as of 8:00 p.m. on March 22, the Governor’s Executive Order requires all non-essential businesses in New York to have all employees work remotely, except for essential services.
In New York, where eligible, an employee may be able to collect unemployment benefits, paid family leave, workers compensation or disability benefits without a waiting period. There is a new federal law that may affect your business as well, providing family/medical job-protected leave protection to eligible employees who work for small employers.
Our attorneys, as well as the attorneys at Jackson Lewis, P.C., are available to assist with all of your questions in this trying time. Below are some emerging legal questions and answers that may impact our clients’ businesses. Obviously, there are many more issues and considerations we have not addressed in this email but we and our contacts at Jackson Lewis are available to assist. Please feel free to contact one of our attorneys or Tom McDonough, Susan Corcoran, or Joe DiPalma of Jackson Lewis.
1. If employees are placed on furlough, what benefits are they entitled to? Do I have to pay out vacation or provide severance?
It is time to take out your handbook to see what benefits your employee may be entitled to. Employees may be allowed to take paid time off benefits. For instance, under the New York State Quarantine Law, employees are entitled to take accrued and unused paid time off. Under State law, they may be entitled to unemployment benefits as well.
2. What is the difference between a layoff and furlough?
The question of financial benefit of furlough versus layoff really depends on how one defines the former term. To many organizations, a furlough means they will continue to utilize employees to perform work but in a reduced capacity – – reduced schedules, alternate days, lower salaries or pay rates. (Under the Wage Theft Prevention Act, NY requires written notice 7 days in advance of any reduction in pay rate or salary but not a reduction in hours). Depending on the drop in pay, the employee may become eligible for NY Unemployment Insurance (“UI”) benefits. NY UI benefits cap at approximately $450- $500 per week so if their weekly pay from work exceeds this amount, no UI benefits will be paid. (One side note – – if employees are still working on April 2, they will become eligible for benefits under the Federal Families First law if the company has less than 500 employees).
In comparison, a layoff (short or long term) is a complete cessation of work by the employee. They would get a COBRA notice and be allowed to receive a pay-out of paid time off consistent with your policies. NY has waived the UI 7-day waiting period so a laid off employee is immediately eligible for UI benefits.
3. Can I have any furloughed employees perform any work?
Any time a person performs work on your organization’s behalf, there will typically be payment and time recording obligations.
4. When I re-open my doors, how do I select which employees to return, if operations are not at 100%?
To minimize your risk of discrimination claims, you need to carefully consider your operational and staffing needs to ensure you are making an unbiased business decision. Legal counsel should be consulted if your decision may result in more older workers being excluded back to work, or perhaps a person who was tested positive with coronavirus is not part of the selection. If pay rates change, in New York, for example, a new wage notices will need to be completed.
5. Can we ask an employee to stay home or leave work if they exhibit symptoms of the COVID-19 coronavirus?
Yes, you are permitted to ask them to seek medical attention and get tested for COVID-19. The CDC states that employees who exhibit symptoms of influenza- like illness at work during a pandemic should leave the
During the H1N1 pandemic, the Equal Employment Opportunity Commission (EEOC) stated that advising workers to go home is not disability-related if the symptoms present are akin to the seasonal influenza or the H1N1 virus. Therefore, an employer may require workers to go home if they exhibit symptoms of the COVID-19 coronavirus or the flu.
6. An employee of ours has tested positive for COVID-19. What should we do?
You should send home all employees who worked closely with that employee for a 14-day period of time to ensure the infection does not spread. Before the employee departs, ask them to identify all individuals who worked in close proximity (three to six feet) with them in the previous 14 days to ensure you have a full list of those who should be sent home. When sending the employees home, do not identify by name the infected employee or you could risk a violation of confidentiality laws. You may also want to consider asking a cleaning company to undertake a deep cleaning of your affected workspaces. If you work in a shared office building or area, you should inform building management so they can take whatever precautions they deem necessary.
7. One of our employees has a suspected but unconfirmed case of COVID-19. What should we do?
Take the same precautions as noted above. Treat the situation as if the suspected case is a confirmed case for purposes of sending home potentially infected employees. Communicate with your affected workers to let them know that the employee has not tested positive for the virus but has been exhibiting symptoms that lead you to believe a positive diagnosis is possible.
8. One of our employees self-reported that they came into contact with someone who had a presumptive positive case of COVID-19. What should we do?
Take the same precautions as noted above. Treat the situation as if the suspected case is a confirmed case for purposes of sending home potentially infected employees. Communicate with your affected workers to let them know that the employee is asymptomatic for the virus but you are acting out of an abundance of caution.
9. If our employees are no longer working, are they still entitled to group health plan coverage?
Not necessarily. You need to check your group health plan document (or certificate of coverage if your plan is fully insured) to determine how long employees who are not actively working may remain covered by your group health plan. Once this period expires, active employee coverage must be terminated (unless the insurance carrier or self-funded plan sponsor otherwise agrees to temporarily waive applicable eligibility provisions), and a COBRA notice must be sent. If your plan is self-funded and you would like to waive applicable plan eligibility provisions, you should first make sure that any stop-loss coverage insurance carriers agree to cover claims relating to participants who would otherwise be ineligible for coverage.
10. I have a “force majeure” clause in my contract. Does it cover an outbreak such as the COVID-19 coronavirus?
A “force majeure” clause is a contract provision that relieves the parties from performing their contractual obligations when certain circumstances beyond their control arise, making performance inadvisable, commercially impracticable, illegal, or impossible. Whether an outbreak like the COVID-19 coronavirus triggers the force majeure clause in a contract, and the effect of that clause on the provisions of the contract, will vary significantly with each employer and contract.
11. I own a professional practice. If I temporarily close my office, what do I tell my patients?
- Inform your patients that you are no longer open for non-urgent care and that you will contact patients to reschedule appointments when your office re-opens.
- Inform your patients that you remain open for urgent care and that patients should call the office prior to coming in for urgent care. Publicize your emergency number and other contact information. If the situation is life-threatening, refer the patient to the emergency room or have them call
- If you close your office entirely, you have a duty to inform all of your patients of record. Calls must be covered, even if that means employing an answering service. Referrals must be made. You must comply with HIPAA and New York State requirements to provide patients with access to their patient records even if closed.
- Again, if the situation is life-threatening, refer the patient to the emergency room or have them call 911.
12. What monetary benefits do employees receive under New York’s New Quarantine Leave Law?
All employees potentially are eligible for leave under the New York State Quarantine Leave law. Leave rights are triggered if employees are unable to work due to “a mandatory or precautionary order of quarantine or isolation due to COVID-19” when that order is issued by the State of New York, New York Department of Health, Local Board of Health, or any governmental entity duly authorized to issue a mandatory or precautionary order due to COVID-19.
|· Employers with 100+ employees;||Must provide at least 14 paid sick days during the applicable quarantine leave period. The law does not require unpaid sick days thereafter, likely because quarantines are presumed to end after 14 days.|
|· Employers with 11 to 99 employees;
· Employers with 10 or fewer employees (with 2019 net income $1,000,000+)
|Must provide at least 5 paid sick days during the applicable quarantine leave period, and then unpaid sick days until termination of order.|
|· Employers with 10 or fewer employees (with 2019 net income under $1,000,000)||Must provide unpaid sick days during the applicable quarantine leave period until termination of order.|
13. How are Short-Term Disability & Paid Family Leave Benefits Expanded During Unpaid Quarantine Leave Periods?
- If employees are not entitled to or exhaust paid Quarantine Leave, and they remain on unpaid leave, the law expands rights to benefits for many employees under New York’s statutory disability and paid family leave laws. These expansions appear to apply only to employees who work for employers with fewer than 100 employees. The expansions also appear to be temporary, to fulfill the purposes of the Quarantine Leave law, and do not permanently expand rights to New York disability and paid family
- If the law permits employees to apply for expanded NYPFL benefits, they must establish leave was needed because they: (1) are subject to a mandatory or precautionary order of quarantine or isolation; or (2) need to provide care for a minor or dependent child of an employee who is subject to a mandatory or precautionary order of quarantine or isolation. Short-Term Disability Benefits will be available to employees unable to work due to a mandatory or precautionary order of quarantine or
- Through these expansions, employees may be eligible for New York Paid Family Leave benefits concurrently with Short-Term Disability benefits; typically, employees cannot receive both benefits at the same time. The 7 day waiting period for disability benefits also is eliminated for this special benefit expansion. Employees may prove disability by producing a mandatory or precautionary order of quarantine or isolation.
- The potential combined STD/PFL benefit is significant. Eligible employees collecting both Short-Term Disability Benefits and Paid Family Leave Benefits may be entitled to as much as $2,884.62 per week (approximately $150,000 annually). The NYPFL cap is $840.70 per week while disability benefits are capped $2,043.92 per week.
14. How can employers coordinate their policies under the Quarantine Leave Law and the Federal Families First Coronavirus Response Act?
- In enacting the Quarantine Leave Law, the legislature anticipated passage of potentially overlapping leave benefits under the federal Families First Coronavirus Response Act (FFCRA) or other potential federal legislation. Consequently, the Quarantine Leave Law reduces benefits by the amounts received for overlapping leave reasons under federal law. In effect, those employers with more than 100 employees but fewer than 500 employees will be entitled to 80 hours (10 days) of paid sick time available under the FFCRA, and, assuming an applicable quarantine or isolation order still prevents an employee from working, the employee will then be entitled to at least 4 additional days of paid sick time under the Quarantine Leave law, for a potential combined total of 14 paid sick days. The paid leave entitlements of the FFCRA and Quarantine Leave law will run concurrently.
15. How does the New York Quarantine Law affect employer PTO & Sick Leave?
The availability and use of Quarantine Leave cannot result in the loss of any other accrued sick leave under existing policies. As a result, any accrued but unused PTO should be available to employees once benefits under the Quarantine Leave law have been exhausted.
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