Tell Me Again — Do We Have to Give FFCRA Leave in 2021? 2020 is in the rearview mirror. Whew!  Unfortunately, COVID-19 is not gone and certainly not forgotten. The latest hot topic has been what to do with employees who think they should get paid leave for COVID-19 reasons that were provided under the Families First Coronavirus Response Act (FFCRA.) (In case you need a refresher on this leave, we blogged on it every other day in the spring.)

If you have fewer than 500 employees and an employee reports that he has tested positive for COVID-19 on January 1, 2021, do you have to give him 80 hours of paid leave like you would have given him if he had tested positive on December 1, 2020? The short answer is no but you can if you want. The Consolidated Appropriations Act (the latest stimulus package) did not extend the FFCRA requirements. If, however, a private employer opts to give FFCRA leave, it can still claim the payroll tax credit for leave through March 31, 2021.

On the last day of 2020, the DOL added two new FAQs about the FFCRA leave. The first simply makes clear that FFCRA leave after December 31, 2020, is not required. The second reminds everyone that the DOL will enforce the law for any leave taken between April 1 and December 31, 2020, and that the statute of limitations for those claims is two years from the date of the violation.

So that is where we currently stand. Any changes will have to come from Congress.

Good Riddance, 2020! Don’t Let the Door Hit Ya’ On the Way Out…It was a mess of times. It was the masked of times. We all probably agree that 2020 presented unexpected and unwanted challenges to employers. It certainly made all of us address unprecedented issues. Let’s look back at some of the things we had to learn during the last 12 tumultuous months and see what perspective we may have on them now:

Remember pre-COVID-19? It’s almost too difficult to do. Back in January, we were looking at ordinary law changes such as the DOL issuing a rule clarifying how you calculated a regular rate of pay.  Or how the new, scary California Consumer Privacy Act was forcing employers to disclose the types of data they were collecting from customers and employees. Both the rule and law are still in effect, but they both feel like they happened a century ago.

Then the virus hit. It is interesting to look back at some of our first thoughts on how the pandemic would affect employers. We had no idea how large the numbers of infected individuals would be or how long it would last. When the FFCRA was enacted, everyone scrambled to understand what it meant and how to make sure you were following it.  We all learned about emergency paid sick leave and new provisions of the FMLA. Employers struggled with how to garner the Employer Tax Credit. Due to the lock down, many employers were forced to furlough (a new idea for many of us) or lay off workers, and we got many questions about unemployment benefits. The DOL was constantly updating its website to try to keep up with the numerous FFCRA questions. The FFCRA is set to expire on December 31, 2020. The current stimulus bill recently signed by the President does NOT extend those provisions (although it does indicate you can voluntarily provide some sort of leave).

We had multiple posts on the FFCRA, so see below for some of our initial thoughts:

Employers also had to learn how to deal with employees working remotely or only coming back on partial schedules. Here were some of our initial thoughts:

Many businesses have now semi-adapted to more people working from home. It will be interesting to see if that trend continues after widespread vaccinations. Technology has come a long way toward making it easier to telecommute, and it may help cut down on overhead. We may also see changes in office dress codes due to workers getting used to wearing casual clothes.

Right in the middle of all the pandemic craziness, one of the biggest employment law decisions of the last 20 years landed in our laps:  Title VII protection for LGBTQ employees. Although this change continues to be overshadowed by the pandemic, it resolved a split among the courts across the country and expanded the right to file a claim for discrimination to millions of workers. It will be interesting to see if the EEOC statistics scheduled to be released shortly will reflect any trends in this area.

Also, during the summer, the country saw massive protests about racial justice. This raised questions about how employers were to deal with political speech in the workplace. We also had an election, which reminded us of employers’ obligations to allow employees to vote.

With the development of the vaccine, some of the old issues raised their heads: Can you force an employee to be vaccinated? And even in December, we are trying to figure out how to deal with employees who have to self-quarantine.

Overall, it was a zany year. But we made it through it! We here at Labor & Employment Insights were proud to try to provide you information on the roller coaster year that was 2020. We wish all of you a happy New Year and hope to bring you more interesting content in 2021 (maybe about something other than COVID-19).

What to Do Before OSHA Comes Knocking with a COVID-19 Inspection Earlier this year, OSHA issued Guidance on Preparing Workplaces for COVID-19, an educational reference designed to advise employers in all industries on implementing engineering, administrative, and work practice controls and personal protective equipment (PPE). The guidance is purely advisory and does not create new legal obligations. Nevertheless, now that OSHA is turning its attention to enforcement and investigation of COVID-related workplace hazards, the guidance proves to be a good way to set your company up to survive an OSHA inspection.

To protect its compliance officers and inspectors, OSHA has indicated it will maximize the use of electronic communication to perform inspections, document requests and witness interviews to address reports of COVID-19-related workplace hazards. Logically, OSHA has focused on very high and high-exposure risk environments in the healthcare and emergency response industries.  As other industries return to in-person work and offices continue to reopen, the guidance is helpful in all exposure risk levels and all industries as it sets forth what standards OSHA will apply in its investigations and what documents inspectors will likely request and review.

Inspection and Document Request

Although OSHA typically initiates an inspection following complaints, referrals, or fatalities and mostly in front-line industries such as hospitals, healthcare, nursing homes, long-term care settings, and meat/poultry processing facilities, any workforce is subject to an inspection whether or not OSHA receives an allegation about COVID-19 in the workplace. In the event of an investigation, OSHA compliance officers will typically conduct an opening conference, program and document review, and onsite inspection and/or witness interviews. As mentioned above, right now OSHA will likely perform the opening conference and witness interviews remotely (e.g., telephone or video conferencing). With regards to the document review, OSHA will likely ask you to produce the following documents to establish your efforts to keep employees safe from COVID-19:

  • Written plans, SOPs or procedures to address worker exposure to COVID-19
  • Employee training content to address COVID-19 hazards
  • Details of cleaning operations and schedules
  • Engineering, administrative, or work practice controls that address exposure to COVID-19 and a timeline for such controls
  • Photos and/or videos of modifications to workstations and/or common areas
  • Documentation of what PPE (masks, gloves, etc.) is currently available and how you have distributed it and how employees use it, as well as any PPE hazard assessments or training documents
  • Written procedures, plans or other documentation for any COVID-19 testing
  • Documentation of any suspected or confirmed cases of COVID-19 among employees
  • Documentation of any suspected or confirmed cases of COVID-19 among visitors, clients, vendors or customers
  • Risk assessments regarding COVID-19 exposure of employees, including whether the assessments were shared with employees and how they were implemented
  • Safety data sheets for any cleaning/sanitizing chemicals used in the workplace

Standards

In addition to the General Duty Clause of the OSH Act, which requires that all employers provide a work environment free from recognized hazards that are causing or are likely to cause death or serious physical harm, OSHA will be looking to the following standards to determine whether you have committed a violation with regards to COVID-19:

  • Respiratory Protection
    • Duty to provide a medical evaluation before a worker is fit-tested for the use of a respirator
    • Duty to fit-test for a tight-fitting facepiece respirator
    • Duty to establish, implement, and update a written respiratory protection program with worksite-specific procedures
  • Recording and Reporting Occupational Illnesses
    • Duty to keep records of fatalities, injuries, or illnesses that are work-related
    • Duty to report a fatality within eight hours after the death of any employee as a result of a work-related incident
  • Personal Protective Equipment
    • Duty to inspect the workplace to determine if hazards are present, or are likely to be present, which require the use of PPE
    • Duty to select and require the use of appropriate PPE
    • Duty to provide training to each employee required to use PPE

In addition to the above, OSHA requires that you protect employees generally from COVID-19 hazards at work, for example, by installing plastic barriers and ensuring social distancing.

Key Takeaways

OSHA has published a document that provides a description of the violations and OSHA standards that have been cited most frequently during COVID-19 related inspections. The publication provides some insight about which workplace hazards have most often resulted in OSHA citations, and what you need to focus on to adequately protect workers. The data provided in the publication is based on inspections where OSHA issued citations.

If you are maintaining thorough records of your efforts related to COVID-19, you will increase the likelihood that you will survive an inspection without assessment of a citation or fine. If you are not sure what you would do if OSHA calls, contact your lawyer to obtain advice and counsel on what you need to do now to be prepared.