Resources

The most frequently asked question our L+E team receives is along the lines of the following:

What do I do with employees who are afraid to come to work because of COVID-19? Some studies have found that 40-50% of the workforce is concerned about going to work. It will be difficult to come up with a direct wrong answer. The issue is that any answer will have indirect consequences.

Answer 1: We appreciate your concern, but you are a key contributor to our operations. We do not have any COVID-19 in the workplace, there are no reports of COVID-19, we clean and disinfect regularly, and we are distancing our employees.

Probably the best answer. It exemplifies that you are a concerned, cautious, and responsible employer. The indirect consequence of this answer is that you may have a disgruntled employee in the workplace. What additional disruption is that employee capable of causing? The slippery slope of this consequence is if other employees pick up the cause and all complain about workplace safety concerns or engage in other “protected concerted activity.” See the Whole Foods/Amazon employee walkout and subsequent fallout for the amount of disruption at stake.

Answer 2: We appreciate your concern. You are on furlough/lay-off/temporary termination as of today.

Not an incorrect answer (*) assuming that your workplace does not actually pose a threat. You don’t have to employ someone who does not want to work. An indirect consequence is that you’ll probably only get to use this answer once. Employees who are voluntarily refusing to work may not be eligible for unemployment benefits. Going forward, other employees will instead make sure their reasons for non-attendance are covered by the Emergency Paid Leave laws. 

(*) This is an incorrect answer in some states, such as Florida, where certain older or at-risk employees are required to stay home, regardless of whether employers are operating. 

Answer 3: We appreciate your concern. You can stay at home on paid/unpaid leave until you feel safe to return. 

This answer is also fine, but it carries the most indirect consequences. When a 75-year old employee, with a compromised immune system, who lives in an assisted living facility, and is unable to telework requests leave for risk of COVID-19 exposure in the workplace, you will be inclined to let her take paid/unpaid leave. But should you? If there is a risk of COVID-19 exposure in the workplace for her, there’s just as much risk for me. While I may be younger with a healthy immune system, I still don’t want the risk of COVID-19 exposure for myself or my family. Therefore, I want the same leave.  

The other indirect consequence of this answer is the “regarded as” conundrum of COVID-19, particularly if extending paid leave. By granting the leave to the at-risk employee, you may be regarding her as disabled and accommodating a disability request to include the leave of absence. This determination and accommodation may extend to other employees and may extend to other viral issues, including the next flu season. 

Evaluate the totality of the circumstances and make a sound business decision. Just be sure to remember the indirect consequences. 

RAPID-FIRE QUESTIONS:

We have fewer than 50 employees, can we automatically deny all Emergency Paid Sick Leave and Emergency Childcare Leave requests?

No. You must make a business determination at the time the request is made if any one of the three viability exemptions are applicable, and these exemptions only apply to the childcare leave under either the Emergency Paid Sick Leave or Emergency Childcare Leave laws. 

I am a healthcare entity, can I automatically deny all Emergency Paid Sick Leave and Emergency Childcare Leave requests?  

No. The exception for “health care provider” applies to the employee, not the entity. The employer must make a judicious decision at the time the request is made if the health care provider exemption applies to that employee. 

We are between 50-499 employees and not in healthcare, are our employees automatically entitled to take Emergency Paid Sick Leave and Emergency Childcare Leave? 

No. Employees are permitted to request it, and if the request is justified, then they are entitled to use it. Employers can require employees to provide sufficient justification for the requests. Ask Bryan Meek what employees need to provide. 

We received a Paycheck Protection Program loan. What happens if employees we furloughed don’t come back to work? 

If you do not hire replacements, it could reduce your forgiveness. The forgiveness is based on the average full-time equivalent (FTE) headcount in the first 8-week period after receiving the loan compared with your choice of FTE calculation either from last year or earlier this year. You can disregard layoffs from earlier this year if you hire the FTEs back by June 30, 2020. But, keep in mind that the $600/week supplemental unemployment benefit extends to July 31, 2020. 

Wait . . . . What?  How much can displaced employees receive through unemployment? 

Here’s an ultra-basic evaluation: Unemployment benefits are about half of the ordinary compensation earned when employed. If an individual receives even $1 from state unemployment, the employee will also receive a $600/week federal supplement until July 31, 2020. The $600/week is a supplement to all state benefits, and equates to about $15/hour. Therefore, if an individual ordinarily earned $30/hour (or $60k annually), he can receive unemployment benefits until July 31, 2020 without working and without losing net compensation. (The actual break-even is closer to $27.50/hour with deductions, but you will need Adam Fuller to explain that to you.) 

But aren’t employees automatically denied unemployment if they refuse to work? 

Not necessarily. A refusal to work is not an automatic loss of benefits. Displaced employees can refuse to work for “good cause,” such as health, safety, suitability of job, etc.  Also, the Ohio rules eliminate the "looking for work" requirement, so enforcement for refusal to work isn’t likely nor will it be timely. 

Anything else employers need to worry about? 

Employers are still safe by following the advice of public health agencies and paying their employees who are working. Check our resources and webinars further. Other than that, I heard a report on the news that 20% of teleworking employees have admitted to day-drinking. I figured it would be higher.

Temporary Rules by Department of Labor 

This update is for those who were on any of my webinars. See Russell Rendall's latest report on the DOL's FFCRA Rule. 

For additional information, please contact Jeffrey C. Miller, jcmiller@bmdllc.com or 216.658.2323, or any member of the L+E Team at BMD.