As the coronavirus pandemic continues to disrupt multiple facets of life across the United States, questions continue to arise related to working parents caring for school aged children. On Friday, June 26, 2020, the Department of Labor (“DOL”) issued two Field Assistance Bulletins FIELD ASSISTANCE BULLETIN No. 2020-3 (FAB No. 2020-3) and FIELD ASSISTANCE BULLETIN No. 2020-4 (FAB No. 2020-4); relating to whether school is considered “in session” for purposes of employing children under the age of 16 and whether canceled summer camps entitle parents to paid leave under the Families First Coronavirus Response Act (“FFCRA”).

FIELD ASSISTANCE BULLETIN No. 2020-3

Depending on whether school is “in session,” and whether a child is working in an agricultural or nonagricultural setting, federal child labor regulations limit the number of hours certain children may work. Generally speaking, federal regulations specify that for non-agricultural employment, school is considered “in session” during any week in which a public-school district requires students to attend school either physically or through virtual or distance learning. For agricultural employment, school is “in session” based on the school calendar for the public-school district where the minor lives.

As the summer months continue, and schools contemplate re-opening or extending the school year with virtual learning and summer school, how can these decisions impact whether a school is “in session” for purposes of school aged children working?

FAB No. 2020-3 makes it clear that for non-agricultural employment, if a public-school district physically closes schools but requires all students to continue instruction through online or virtual learning, school is “in session.” In a slightly similar fashion, for agricultural employment, if a school district is requiring online or virtual instruction, school is “in session.” Finally, while summer school is typically considered outside of normal school hours, if a school implements mandatory summer school sessions for all students, the school will be considered “in session” during that time period.

DOL’s new guidance appears to take an all or nothing approach in determining whether school is “in session.” If a school district is extended learning for all students, school will likely be “in session.”

FIELD ASSISTANCE BULLETIN No. 2020-4

Under the FFCRA, Employees are eligible for FFCRA leave if they unable to work or telework due to a need to care for their child whose school, child care provider or place of care is closed due to COVID-19. FAB 2020-4 clarifies that under the general FFCRA framework, summer camps are a place of care, and cancelled summer camps may entitle parents to FFCRA leave.

FAB 2020-4 makes it clear that cancelled summer camps may qualify as a place of care for purposes of FFCRA leave. Whether a parent is entitled to leave for a canceled summer camp is heavily dependent upon whether the parent’s child was enrolled in the camp prior to its closure, and/or any steps that may have been taken to enroll the child in the camp prior to its closure.

A closed summer camp may be considered a child’s place of care if they were enrolled in the camp prior to its closure. If a child was not fully enrolled in a summer camp prior to its closure announcement, the child’s parent still may be entitled to leave if the parent can show; (1) a plan to send his or her child to a summer camp or program, or (2) that even though the employee had no such plan at the time the summer camp or program closed, his or her child would have nevertheless attended the camp or program had it not closed.

Finally, FAB 2020-4 makes it clear that an employee who requests leave to care for his or her child based on the closure of a summer camp, must provide the typical substantiating documentation required for FFCRA leave. As such, parents who provide their employer with the name of their child, the name of the canceled summer camp and a statement that no other suitable person is available to care for the child, have satisfied their documentation requirements for seeking FFCRA leave.

As businesses in Ohio and across the country continue reopening, many employees are refusing to return to work, and are instead remaining off collecting unemployment benefits. This has frustrated many employers, and Ohio Governor DeWine recently stepped in to address the issue.

In particular, Governor DeWine issued an Executive Order specifying that employees who refuse an offer to return to work may have their unemployment benefits cut off unless one of the following circumstances exists:

  • A medical professional recommends that the employee not return to work because the person is considered high-risk by the CDC, and the employer cannot offer teleworking options;
  • The employee is 65 years of age or older;
  • There is tangible evidence of a health and safety violation by the employer that prevents the employee from practicing social distancing, hygiene, and wearing protective gear;
  • The employee has been potentially exposed to COVID-19 and is subject to a quarantine period as prescribed by a medical or health professional; or
  • The employee must stay home to care for a family member who is suffering from COVID-19 or is subject to a prescribed quarantine period by a medical or health professional.

The Governor’s Executive Order will remain in effect until he declares the current state of emergency over, or until he rescinds it, whichever happens first.

On June 17, 2020, the Equal Employment Opportunity Commission (EEOC) updated its Technical Assistance Questions and Answers to clarify that employers may not require COVID-19 antibody testing before permitting employees to re-enter the workplace. Antibody tests can show whether the subject had a past infection or has recovered from the virus that causes COVID-19. Currently, there is a fair amount of debate in the scientific community as to what the results of antibody tests mean and whether they demonstrate immunity to the virus.

The EEOC’s position results from separate guidelines from the Centers for Disease Control and Prevention (CDC), which provides that antibody test results “should not be used to make decisions about returning persons to the workplace.” Given the CDC’s position regarding antibody testing, the EEOC explained that “an antibody test at this time does not meet the ADA’s ‘job related and consistent with business necessity,’ standard for medical examinations or inquiries for current employees.” According to the EEOC, requiring an employee to submit to an antibody test before re-entering the workplace violates the ADA’s prohibition of certain medical inquiries/tests of current employees.

It is important to note that antibody tests are not the same as COVID-19 tests, which look for signs of active virus in the subject. The EEOC has previously indicated in its guidance that under the ADA employers may require employees to submit to a COVID-19 test before re-entering the workplace because an individual with the virus will pose a direct threat to others.

The EEOC’s Technical Assistance Questions and Answers, including the updated guidance related to antibody testing can be found here.

Today, in Bostock v. Clayton County, Georgia, the United States Supreme Court held that gay, lesbian, and transgender employees are protected from adverse action based on their sexual orientation or gender identity. The 6-3 Court reasoned that the plain meaning of the term “sex,” as used in Title VII, includes sexual orientation and gender identity. Justice Gorsuch writing for the Majority explained: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The Supreme Court’s decision was based upon the consolidated cases of two gay men and a transgender woman who sued for sex discrimination under Title VII in the Second, Sixth, and Eleventh Circuit Courts of Appeals after they were terminated from their respective employers. (See Altitude Express, Inc. v. Zarda; R.G. & G.R. Harris Funeral Homes v. EEOC; Bostock v. Clayton County, Georgia)

Ohio’s law remains the same and does not provide any protections for LGBT employees. However, Ohio employers are prohibited under Title VII from discriminating against LGBT employees. Therefore, employers should consider taking the following steps as a result of today’s decision:

  • Update anti-discrimination, anti-harassment, retaliation, and reporting policies to include language protecting sexual orientation, gender identity, and gender expression. The policies should be easy to understand. Modernize the policies to include specific and updated examples of harassing behavior and terminology and remove legalese.
  • Update company policies and employment forms to include appropriate and inclusive terminology. Consider updating policies to indicate acceptable terms and definitions of those terms, as well as guidelines for appropriate pronoun use for employees of all sexes and gender identities.
  • Distribute updated policies to employees and require employees to sign an acknowledgement of the updated policies.
  • Regularly train employees and managers. All employees should receive training that covers workplace harassment and discrimination on a regular basis. Managers should receive additional training, including how to recognize harassment and discrimination, how to address a complaint, and how to have a conversation with employees about harassment and discrimination.
  • Foster an inclusive workplace culture. Employers should consider expanding upon traditional discrimination and harassment resources to include diversity training, such as acknowledging unconscious bias, and providing gender-transition resources to employees. Developing an inclusive workplace culture must start at the top. Therefore, management, including senior executives, must voice their support for the company’s inclusive policies.
  • Maintain an open door policy and encourage employees to approach human resources with questions or to obtain educational resources.

WEWS News Channel 5 Cleveland

Click here to view the video.

Excerpts from the story:

“Social media has been responsible for blurring the lines a lot between employees personal lives and their professional lives,” Christina Niro said.

Niro warned that in times of turmoil, many companies nationwide are cracking down on their social media conduct policies.

“Those policies are going to have anti-discrimination policies. They’re going to have social media policies,” Niro said. “Hopefully, in this day and age everybody’s got a social media policy.”

Niro added several factors determine whether an employer will choose to discipline or terminate an employee for an online post.

“It’s going to depend on the comment itself, whether it incites violence, for example,” Niro said. “Whether it’s hate language, whether its racist or bigoted.”

She said context is key if an employer is made aware of a questionable post.

“If it is ten years ago when they were in high school versus a year ago at their previous employer, that context, again context specific, would make a difference to me if I was an employer,” Niro said.

Niro advised sharing controversial thoughts on social media could not only affect you at your current workplace, but could also compromise future opportunities.

“A lot of employers do search public content when making their decisions about whether or not they’re going to be hiring or not offering an individual a job opportunity,” Niro said.

On May 7, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced that it will delay the opening of the 2019 EEO-1 Component 1 data collection, the 2020 EEO-3 data collection, and the 2020 EEO-5 data collection.

 

The EEOC was planning to open these surveys in 2020; however, the EEOC decided to delay the opening of these surveys as it has recognized the impact that the coronavirus public health emergency is having on employers across America.

 

It is not yet clear when employers must submit these surveys. However, the EEOC expects to begin collecting the 2019 and 2020 EEO-1 Component 1 in March 2021, and the EEOC expects to begin collecting the 2020 EEO-3 and the 2020 EEO-5 in January 2021. The EEOC will notify filers of the precise date the surveys will open as soon as that date is available.

 

As a reminder, the EEOC collects this workforce data from employers with more than 100 employees (lower thresholds apply to federal contractors). The data is used for a variety of purposes including enforcement, self-assessment by employers, and research. Employers meeting the reporting thresholds have a legal obligation to provide the data meaning that compliance is not voluntary.

 

If you have any questions regarding the filing of EEO reports, please contact Frantz Ward’s Labor and Employment group.

On Friday, OSHA issued enforcement guidance regarding employers’ obligations to record COVID-19 cases. According to its previous statements, OSHA’s position is that COVID-19 is a recordable illness under OSHA’s recordkeeping requirements and employers are responsible for recording cases of COVID-19 if:

(1) the case is a confirmed case of COVID-19, as defined by Centers for Disease Control and Prevention (CDC);

(2) the case is work-related as defined by 29 CFR § 1904.5; and

(3) the case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.

However, recognizing the difficulty employers have faced during the past several weeks trying to determine whether workers who contracted the disease did so due to exposures at work, and given the ongoing community spread of COVID-19 in many areas of the country, OSHA has decided to significantly curtail its recording requirements for the majority of employers.

Per OSHA’s new guidance, OSHA will not enforce its recordkeeping standards against the majority of employers due to the difficulty in determining whether an employee contracted COVID-19 at work. Employers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions must continue to make work-relatedness determinations pursuant to 29 CFR § 1904 and record COVID-19-related illnesses. Until further notice, however, OSHA will not require other employers to make work-related determinations unless:

  1. There is “objective evidence” that a COVID-19 case may be work-related (this could include, for example, a number of cases developing among workers who work closely together without an alternative explanation); and
  2. The evidence was reasonably available to the employer (examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees).

See the memo here. While no reference is made to reportability in this new guidance, employers may reasonably follow the same framework regarding determinations of work-relatedness in cases of employee deaths or in-patient hospitalizations.

The guidance also provides limited clarification regarding employee privacy, and states that because COVID-19 is an illness, if an employee voluntarily requests that his or her name not be entered on the log, the employer must comply as specified under 29 CFR § 1904.29(b)(7)(vi) by entering “privacy case” in the space normally used for the employee’s name, keeping a separate list of privacy concern cases, among other requirements.

Frantz Ward’s Coronavirus Response Team assists clients in navigating the multitude of issues presented by the current crisis. For assistance in addressing these issues or in developing other strategies to protect your business, please contact Frantz Ward Partners  Brian Kelly or Christopher Koehler and they will engage the appropriate members of the response team. In addition, please visit the Frantz Ward Coronavirus Daily Update/Resource Center for up-to-date information and links.

As we wrote about here, the U.S. Department of Labor (“DOL”) has issued informal guidance to help employers understand their rights and obligations under the Families First Coronavirus Response Act (“FFCRA”). DOL has since updated that guidance to address topics such as the following:

  1. Whether employees are eligible for paid leave if they are unable to work due to layoff, furlough, or hours-reduction resulting from business downturns or a governor-issued stay-at-home order;
  2. Documentation that the employer can require from employees for various forms of paid leave, and relatedly, documentation that the employer should retain to support its request for tax credits;
  3. Extent to which leave can be taken intermittently, both when teleworking and non-teleworking;
  4. Eligibility for unemployment benefits while collecting paid leave;
  5. Permissibility of supplementing FFCRA paid leave with  accrued paid time off;
  6. Health insurance continuation while on leave.

The guidance (as updated) can be found here.

At some point, DOL will issue formal regulations interpreting the FFCRA, but DOL has not released a specific timeline for doing so. In the meantime, this informal guidance provides some helpful direction.

Should you have any questions about the guidance, or the FFCRA, feel free to reach out to any Frantz Ward Labor and Employment attorney.

Frantz Ward has established a Coronavirus Response Team to assist clients in navigating the multitude of issues presented by the current crisis. For assistance in addressing these issues or in developing other strategies to protect your business, please contact Frantz Ward Partners Brian Kelly or Christopher Koehler and they will engage the appropriate members of the response team.

On March 25 the Department of Labor (“DOL”) released the Families First Coronavirus Response Act’s (FFCRA) required notice poster that will need to be posted at many workplaces. The DOL also issued a FAQ to explain employer obligations associated with the posting. Unfortunately, these publications both raise additional questions.

First, there appears to be an error on the DOL’s initial poster. The current poster indicates that the Expanded Family Medical Leave Act provides a cap of $12,000 for eligible employees, whereas the aggregate cap under the actual FFCRA is $10,000. The only way an employee can receive $12,000 is if they received 10 days of paid sick leave in accordance with the Paid Sick Leave provision of the FFCRA. The poster does not reference the distinction.

The FAQ also indicates that employers must post the notice in a conspicuous place, but that they can also satisfy the posting requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website. This process seems to be focusing on employees who are unable to report to work because of quarantining, indicating that employers may have some obligation to notify those employees who are unable to report to work. The DOL should be issuing additional guidance on this requirement soon.

For the time being employers should hang the poster currently issued by the DOL, but continue to monitor the DOL for developing guidance. If the DOL issues a revised poster before April 1, we will update you here.

Frantz Ward has established a Coronavirus Response Team to assist clients in navigating the multitude of issues presented by the current crisis. For assistance in addressing these issues or in developing other strategies to protect your business, please contact Frantz Ward Partners Brian Kelly or Chris Koehler and they will engage the appropriate members of the response team.

While the Department of Labor (DOL) has not yet issued regulations, it has issued initial guidance to help employers understand who and what is covered under the new Families First Coronavirus Response Act (“FFCRA”). This initial guidance comes in the form of a FAQ and a Fact Sheet.

The new guidance assists employers by answering several key questions that have surfaced since the law was passed. The guidance details:

  • The FFCRA’s paid leave provisions become effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.
  • How to count employees when determining whether an employer meets the 500-employee threshold.
  • If two entities are considered a joint employer (as defined under the FLSA), all of their common employees must be counted in determining whether paid sick leave and emergency family medical leave must be provided.
  • If two entities are considered an integrated employer (under the FMLA), then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave.
  • How to determine hours worked by a part-time employee.
  • When calculating an employee’s regular rate of pay for purposes of paid leave, the employer is to use the employee’s average rate of pay over a period of up to six months prior to the date the employee takes the leave. Commissions, tips, and piece rates, must be included in the regular rate calculation.
  • How the paid sick leave and the expanded family medical leave provisions work in conjunction with each other where an employee is home with his/her child because their school or place of child care is closed, or the child care provider is unavailable.
  • The various levels of pay associated with the specific qualifying reason for an employee’s leave.

Unfortunately, the new guidance does not provide much information for smaller businesses (less than 50 employees) that seek to utilize the exemption from providing paid sick leave or expanded family and medical leave because it would jeopardize the business’s viability. Smaller businesses should document why their business meets the criteria for exemption and await further guidance once the DOL issues regulations.

We will continue to monitor this developing situation as employers await the DOL’s regulations. Should you have any questions about the new guidance, or the FFCRA, feel free to reach out to any Frantz Ward Labor & Employment attorney.

Frantz Ward has established a Coronavirus Response Team to assist clients in navigating the multitude of issues presented by the current crisis. For assistance in addressing these issues or in developing other strategies to protect your business, please contact Frantz Ward Partners Brian Kelly or Chris Koehler and they will engage the appropriate members of the response team.