On March 18, the Senate passed, and the President signed into law, the Families First Coronavirus Response Act (FFCRA). The two provisions that are of key importance to employers are the Emergency Paid Sick Leave (EPSL) and the Emergency Family Medical Leave Act Expansion (EFMLA).
Emergency paid sick leave – this is for Coronavirus (cv) related absences only, not for general sick time. Full time employees get 80 hours, and it is prorated for part time employees. This applies to all employers under 500 employees, but gives the Sec. of Labor the authority to exempt employers with 50 or fewer employees.
Expanded FMLA – this leave is limited to employees who have to stay home to care for a child whose school or daycare is closed due to cv. It provides for 10 weeks pay at 2/3 regular pay. This applies to all employers under 500 employees, but employers with 50 or fewer employees may apply for an exemption with the Sec. of Labor.
This law will go into effect in 15 days. At this time, there are a lot of questions, especially as to the small business exemptions. We hope to see some guidance issued on these in the days to come, and I will keep you all updated.
I’ve received a few questions from clients wondering if they are risking either OSHA violations or workers’ compensation claims if an employee contracts coronavirus and claims they got it from work. Although this would all be very case-by-case, for most employers the answer would be that the risk of these claims is very low.
OSHA has issued Guidance on Preparing Workplaces for COVID 19, a 35 page booklet (link below). This comprehensive report breaks down workplaces into 4 categories – Very High Risk, High Risk, Medium Risk and Low Risk. Outside of hospitals, EMS workers or similar medical settings, most employers will fall in the Medium to Low Risk categories. (Retail may be medium risk, an office setting low risk.) The Guidance then explains what type of personal protective equipment (PPE), engineering controls and administrative controls are recommended for each risk category.
As for workers’ comp, a coronavirus claim (if made) would be evaluated under the standards for occupational diseases. To get this type of claim allowed, an employee would have to prove the disease was: (1) contracted in the course of employment; (2) that it was peculiar to the employment; and (3) that the employment created a risk of contracting the disease in a greater degree and in a different manner than in the public generally. Needless to say, outside of a hospital environment this would be nearly, if not absolutely, impossible to prove.
Again, each case would have to be evaluated on a case-by-case basis, but for most employers the risk of OSHA or BWC claims is very low.
Recommended Action Steps for Employers:
Review the OSHA Guidance to determine what risk category your business falls in, and review the recommended “controls” and PPE that would apply to your workplace. Listen to, and address, employee concerns about coronavirus risks in the workplace – whether that risk comes from within the workplace (from other employees) or externally through clients, customers, or the general public. If you have any questions regarding coronavirus related employment issues, please contact Jennifer Corso. firstname.lastname@example.org, 216-381-3400.
On March 18th, during the Governor’s daily afternoon briefing, he requested businesses to begin taking temperatures of employees. This was followed up in a tweet issued by the Governor’s office later that afternoon:
We are asking businesses — beginning immediately to take the temperature of every single employee every day before they come to work. We’re asking them to be aggressive in regard to cleaning surfaces and having soap/hand sanitizer available. Send employees home who are sick.
Less than 24 hours later, Governor DeWine had publicly recognized that there was an extreme shortage of thermometers available in stores, and on-line orders had weeks long backorders. However, he still encouraged employers to do what they could, and if they could not personally take employee temperatures to instruct employees to do so before coming to work.
While this request was not an official order, it is recommended that employers do what they can to comply.
Recommended Action Steps for Employers:
If you have a forehead or touchless thermometer available, use it to take the temperature of every employee before they start work. Ideally, this would be done before they enter the workplace, or as close to the employee entrance as possible. If an employee has a fever (100.4° F), send them home. (If they have coronavirus symptoms and need to isolate they may apply for unemployment.) If you do not have a thermometer, instruct all employees to take their temperatures before leaving for work, and to call in if they have a fever or other symptoms. If you have any questions regarding coronavirus related employment issues, please contact Jennifer Corso. email@example.com, 216-381-3400.