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You Asked, We Answered: Top COVID-19 Compliance Questions

Wednesday, March 25, 2020
Written By
Erica Storm
Director of Legal Content

As uncertainty over the COVID-19 pandemic grows, you’ll likely be getting more and more questions from your clients regarding compliance and benefits administration. To help you navigate these uncharted waters, we’ve put together a list of FAQs we received during our recent webinar, “Important Updates on Coronavirus and the Workplace.”

During this webinar, held March 20, 2020, our content attorneys discussed best practices for addressing the risks of communicable illness at work and federal and state legislative efforts to provide relief to workers affected by COVID-19. A full recording of this webinar, along with other timely resources, can be found on our COVID-19 Resource Center.

Webinar FAQs: COVID-19 Compliance Questions

Q: Can we require employees who recently traveled to areas affected by a large outbreak of COVID-19 to stay at home and not come into the office?

A: Yes, you can request an employee to isolate or stay at home for a set period of time before coming into the office. To the extent possible, determine whether they can work from home before reporting to the office. Look into remote work options and how to make remote work accessible to them (and how to get equipment/technology to them if they didn’t take equipment with them prior to travel).

Q: Is there going to be a law that will help employees at businesses with more than 500 employees?

A: At this time, there are no plans for such a law that would provide paid leave benefits. That doesn’t mean it won’t happen in the future, but this is the first stage to address some of the more critical needs for smaller employers who may not have PTO programs in place to provide wage replacement or paid time for employees to be off of work. Other types of relief may be available for additional businesses under state or federal programs.

Q: How does new legislation affect employers, like restaurants, who have furloughed employees who may have been sick prior to the furlough?

A: Paid leave for these individuals will depend on if they are still considered to be employed or not. The understanding being in the legal community that if someone has had their employment terminated and a company is no longer considered an employer, then there is no paid sick leave requirement, even if this termination was due to the company shutting down. If someone was previously sick, the DOL has indicated that the paid leave requirement is not retroactive and will depend on whether they are still considered to be employed by the employer.

Q: Will employees be required to provide proof of a positive diagnosis from a medical professional if they want to receive the paid sick leave?­

A: The guidance from the CDC is to adopt policies that are flexible with the understanding that medical facilities are going to be overwhelmed, especially as the virus continues to spread. We may see future guidance from the DOL to tell us how and when such documentation is required.

Q: ­Is the age limit for needing to care for a child under 18?­

A: This will depend on the specific language of certain provisions. For instance, the emergency paid sick leave act doesn’t include an age, but in general, the language suggests this for children under the age of 18. However, this could be interpreted differently in certain situations, such as for children with disabilities. The expanded FMLA leave, though, does specifically state it’s for children under 18 years of age.

Q: Just want to make sure on new FMLA requirements—is it 10 days unpaid, then an employee uses PTO and then employers pay for the rest of the 12 weeks? How does PTO apply?

A: It’s supposed to work where there are 10 days unpaid, but employees can choose to use other types of paid leave like PTO to supplement lost income. In some cases, depending on the reason, they may be eligible to apply for the emergency paid sick leave during that time. Then employers would pay for the rest of the 12 weeks.

Q: Many employees will lose their medical benefits under group coverage if they become unemployed. Are there any rules regarding continued medical coverage for those individuals besides COBRA?­

A: Aside from any state continuation requirements that might apply, we are not aware of any plans to extend coverage for this particular purpose. That may be something we see in a new phase though. We have seen COBRA subsidies in the past that the government provided to bolster coverage and reduce employee costs during the last recession. In some cases, states and insurance carriers are providing flexibility for individuals who would lose coverage due to a reduction in hours of employment.

Q: What if a company doesn’t offer payment under the new emergency sick paid leave act?

A: The enforcement is going to be done under the Fair Labor Standards Act (FLSA). Employers that fail to pay would be considered to have failed to pay minimum wage under the FLSA and subject to those related penalties. If they are found to be discriminating or retaliating against employees, they could be subject to other parts of the FLSA and associated penalties.

Want more information?

Visit our COVID-19 Resource Center to access the latest compliance, HR and employee resources. These resources can be downloaded for free and shared internally, with your clients and their employees to help them stay safe and informed during these uncertain times. Zywave partners with the HR Hotline can also reach out directly for help with specific questions.

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