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US COVID-19: FFCRA Implications of School Reopening Plans

With school reopening plans currently a hot topic across the country, a natural corollary is:  What do those plans mean for employee requests for leave to care for a child under the Families First Coronavirus Response Act (“FFCRA”)?  Under the FFCRA regulations and previous guidance issued by the Department of Labor (“DOL”), the answer appears to be that if a child’s school is physically open and the child is permitted by the school to attend in person, then any personal choice by the child’s parents to instead have the child participate in remote schooling will not provide a qualifying reason for FFCRA leave.

The FFCRA entitles eligible employees of covered employers to take up to two weeks of Paid Sick Leave, and up to ten additional weeks of Expanded FMLA leave, when the employee is unable to work (including telework) due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19 (“Child Care Leave”).  See https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave; 29 CFR §§ 826.20(a)(v), (b).

Early on during the pandemic, the DOL made clear through its Q&A guidance that Child Care Leave is available when instruction has moved entirely online, due to the physical location of a school being closed:

  • My child’s school or place of care has moved to online instruction or to another model in which children are expected or required to complete assignments at home. Is it “closed”?
  •  

    Yes. If

    Coronavirus: HR impact of the economic statement by the UK Chancellor of the Exchequer

    Following catastrophic falls in economic output during quarter 2, the UK Chancellor of the Exchequer has, today, made a ground-breaking economic statement setting out the UK government’s second phase of its economic response, which includes a significant effort to “protect, support and retain jobs”.Given that largescale unemployment would be a key factor in creating long term scarring for the economy, a key emphasis has been on reducing the number of unemployed as we emerge from the Coronavirus Job Retention Scheme (“CJRS”) at the end of October 2020.

    Set out below are the key points for employers:

    • Job Retention Bonus. To incentivise employers to bring furloughed employees back to work, the government will pay employers a bonus of £1,000 per employee on condition that following the end of the CJRS, they remain employed by their employer until at least January 2021, earning a minimum of £520 per month.
    • Kickstart Scheme. This scheme will provide new jobs to 16-24 year olds who are on Universal Credit.  The government will pay the national minimum wage of young people employed under this scheme for the first 6 months of their employment, subject to the job being a new one; salary being a national minimum wage or above and the role being for at least 25 hours per week.  There will be no cap on the number of places available under the scheme and participating employers will also receive £1,000 for administrative costs. It is estimated that this £2 billion scheme will see the creation

    US COVID-19: Georgia Passes Legislation Creating Immunity for COVID-19 Liabilities

    On June 26, 2020, and in the midst of the ongoing coronavirus pandemic, Georgia’s Legislature passed the “Georgia COVID-19 Pandemic Business Safety Act” (the “Act”). The Act provides Georgia businesses with certain defenses and immunities for potential liability from claims related to the spread of COVID-19.

    What Immunities Does The Act Provide?

    Under the Act, no covered entity or individual will “be held liable for damages in an action involving a COVID-19 liability claim . . . unless the claimant proves that the actions . . . showed: gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.”

    The Act defines a “COVID-19 liability claim” as a cause of action for:

  • Transmission, infection, exposure, or potential exposure of COVID-19: (i) at any healthcare facility or on the premises of any entity, individual, or healthcare provider, that results in injury to or death of a claimant; or (ii) caused by actions of any healthcare provider or individual resulting in injury or death of a claimant;
  • Acts or omissions by a healthcare facility or healthcare provider in arranging for or providing healthcare services or medical care to the claimant; or
  • Manufacturing, labeling, donating, or distributing personal protective equipment or sanitizer that is directly related to providing personal protective equipment or sanitizer to claimant and which departs from the normal manufacturing, labeling, donating, or distributing of this equipment by such entity that proximately results in injury to or death of the claimant.
  • To Whom Do These Immunities

    US COVID-19: Managing FFCRA “Child Care” Leave During The Summer

    The advent of summer has brought the reality of “child care” leave under the Families First Coronavirus Response Act (FFCRA) to the forefront of employers’ minds:  Are employees really entitled to up to 12 weeks of leave to care for their children during “summer vacation” from school?  And, if yes, how do we manage this leave?

    The answer to the first question is, “possibly.”  Eligible employees of employers covered by the FFCRA are entitled to up to 12 weeks of leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19: (a) two weeks of Paid Sick Leave; and (b) up to ten additional weeks of Emergency FMLA Leave.

    While this entitlement creates the potential for employees to be on leave all summer (and mostly paid leave, at that:  employers must play employees 2/3rds pay at employee’s normal rate, subject to caps) there are a number of steps employers can take to effectively manage this leave.

    Step 1:  Ensure the Employee has a Qualifying Reason for Leave, and Document the Reason

    The Department of Labor has made it clear that “summer vacation” does not, in itself, create a qualifying reason for FFCRA leave, because school being closed for the summer is not a “reason related to COVID-19.”  See DOL FFCRA Q&A #93.  It is only when the employee’s plans for summer care for the child have fallen through because of a COVID-19 related reason that FFCRA leave could be

    US COVID-19: 4 Takeaways from the EEOC’s New Guidance on Antibody Testing, Older Workers, and Accommodations

    June 23, 2020

    Categories

    With more and more states reopening their economies, employers are facing a barrage of new requirements from state and local governments.  But compliance with local law isn’t the only thing employers must consider as they resume business operations.  Federal anti-discrimination laws, including the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”), continue to impact which workers may be required to return to work and what information employers may gather in the process.

    Just as the COVID-19 pandemic evolves, so, too does guidance on these topics from the Equal Employment Opportunity Commission (“EEOC”), the agency charged with enforcing federal anti-discrimination laws.  In its most recent publication, the EEOC offers new insights on antibody testing, older workers, and accommodations.  Below are four key takeaways from the updated guidance for every employer to consider.

  • Employers may not require employees to undergo antibody testing (i.e. serologic testing used to determine whether an employee was previously infected with COVID-19) prior to returning to the workplace. This is in contrast to diagnostic testing (i.e. viral testing used to determine whether an employee is currently infected with COVID-19), which an employer may require.
  • Employees are not entitled to an accommodation under the ADA in order to reduce the risk of exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition.
  • If an employer implements health/temperature screenings upon entry, an employee’s request for an alternative method of screening due to a medical
  • US COVID-19: EEO Reminders to Include in Return to Work Communications

    As employers prepare their “Return To Work” plans, clear communications to employees about protocols and expectations will be critically important.  Recent updates to the federal Equal Employment Opportunity Commission (EEOC) COVID-19 publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEOC Laws,” discuss “reminders” that employers should consider providing to employees on various EEO-related “Return To Work” topics.

    Anti-Harassment Reminders

    Near the beginning of the COVID-19 outbreak in the U.S., as reports of harassing conduct towards Asian individuals increased, the EEOC was quick to remind employers that they could reduce the chance of harassment by explicitly communicating to the workforce that fear of the pandemic “should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases.”  (E.1.)

    The EEOC reiterated that guidance in its recent updates, noting that workforce reminders should:

    • Note Title VII’s prohibitions on harassment;
    • Remind employees that harassment will not be tolerated;
    • Encourage anyone who experiences or witnesses workplace harassment to report it to management; and
    • Remind employee that harassment can result in disciplinary action up to and including termination.

     

    (E.3.)  The EEOC further emphasized that managers in particular should be reminded of their roles in watching for, stopping, and reporting any harassment or other discrimination, and that managers should specifically “be alert to demeaning, derogatory, or hostile remarks directed to employees who are or are perceived to be of Chinese or other Asian national origin, including about

    Coronavirus: new detailed UK guidance on part-time furloughing and reduction in grants under the UK furlough scheme – implications for employers

    The UK government has now released its detailed guidance to implement flexible furlough and gradually wind down the Coronavirus Job Retention Scheme (“CJRS”) to its expected end date of 31 October 2020.

    Key highlights of the new flexible furlough regime and winding down payments

    From 1 July 2020, employers can bring furloughed employees back to work for any amount of time and any shift pattern, while still being able to claim a CJRS grant for the hours not worked. Some of the key aspects of the flexible furloughing regime are set out below:

    • Employers will still be able to claim the CJRS grant for the hours that its employees are flexibly furloughed (that is, not working), compared to the hours they would normally have worked in that period.
    • The existing three week minimum furlough period will be removed. CJRS claims made via the online portal will, however, need to be for a minimum period of one week.
    • Wage caps will be proportional to the hours an employee is furloughed. For example, an employee is entitled to 60% of the £2,500 cap if they are placed on furlough for 60% of their usual hours.
    • Save for employees returning from family leave:
      • employers will only be able to claim for employees who have previously been furloughed for at least 3 consecutive weeks taking place any time between 1 March 2020 and 30 June 2020; and
      • the number of employees an employer can claim for in any claim period starting

    Coronavirus: UK Furlough Scheme – timeline of key dates including collective consultation triggers

    The UK Coronavirus Job Retention Scheme (“CJRS”) is evolving and winding down. In addition to knowing when these changes take effect, UK employers need to bear in mind the risk that they may also trigger collective consultation obligations. Set out below are some key dates for UK employers to bear in mind:

    10 June 2020: furlough claims can only be made in respect of employees who have been registered under the scheme by this date.

    16 June 2020: ‘cliff-edge’ date for conducting minimum 45 days collective consultation prior to any changes from 1 August 2020.

    30 June 2020: employers will not be able to put additional employees on furlough.

    1 July 2020: part-time furloughing is permitted.

    1 August 2020: employers will have to pay employer National Insurance contributions and employer pension auto enrolment contributions for furloughed employees.

    1 September 2020: employers must contribute 10% towards the pay of furloughed employees.

    15 September 2020: ‘cliff-edge’ date for conducting minimum 45 days collective consultation prior to the end of the CJRS on 31 October 2020.

    1 October 2020: employers must contribute 20% towards the pay of furloughed employees.

    31 October 2020: the CJRS ends.

    BCLP has assembled a COVID-19 Employment & Labor taskforce to assist clients with employment law issues across various jurisdictions. You can contact the taskforce at: COVID-19HRLabour&EmploymentIssues@bclplaw.com. You can also view other thought leadership, guidance, and helpful information on our dedicated COVID-19 / Coronavirus resources page at https://www.bclplaw.com/en-GB/topics/covid-19/coronavirus-covid-19-resources.html

    COVID-19 redundancy issues: HR frequently asked questions in multiple jurisdictions

    Summary

    We understand that our clients and contacts will be addressing complex redundancy issues related to COVID-19 in multiple jurisdictions. BCLP, together with our local counsel friends, have produced a global Q&A document covering 40 jurisdictions. We cover questions around dismissals, compensation, collective consultation and alternatives to redundancy.

    Please download our global Q&A document here.

    The document covers the following questions:

    • Is there any legislation, order or mandate prohibiting an employer from dismissing an employee in circumstances where the employer has obtained the benefit of Coronavirus government support?
    • Does an employee with a qualifying period of employment have any statutory protection against redundancy dismissal?
    • What redundancy compensation is payable to an employee who is dismissed by reason of redundancy?
    • Should an employer take into consideration a Coronavirus government support scheme before dismissing an employee?
    • Are employers subject to separate collective consultation obligations?
    • If an employer is subject to collective consultation obligations, is there any defence for a failure to comply?
    • If an employer is subject to collective consultation obligations, what is the sanction for a failure to comply?
    • What alternatives to redundancy dismissal are open to an employer?

    U.S. COVID-19: Chicago Ordinance Bars Retaliation For Taking COVID-19 Related Leave

    As the result of an Ordinance that was passed and became effective on May 20, 2020, Chicago employers are prohibited from taking adverse action against employees who take leave for certain COVID-19 related reasons.

    Covered Employers

    The Ordinance applies to all employers who are covered by the Chicago Minimum Wage and Paid Sick Leave Ordinance (“PSL Ordinance”), which went into effect in July 2017.  This includes any employer (any individual, partnership, association, corporation, limited liability company, business trust, or person/group of persons) that: (a) employs at least one Covered Employee, and (b) maintains a business facility within the geographic boundaries of Chicago and/or is subject to certain Chicago licensing requirements.

    Covered Employees

    Most employees are covered, so long as they work at least two hours during any two-week time period in the City of Chicago (including time travelling for deliveries or sales calls but not including uncompensated commuting time).

    Prohibited Retaliation

    As part of a “[d]uty to allow Covered Employees to obey public health orders,” employers are prohibited from taking adverse action against an employee “for obeying an order issued by the Mayor, the Governor of Illinois, the Chicago Department of Public Health, … or a treating healthcare provider [in the case of 2-4 below],” requiring an employee to:

  • Stay at home to minimize the transmission of COVID-19;
  • Remain at home while experiencing COVID-19 symptoms or sick with COVID-19;
  • Obey a quarantine order issued to the Covered Employee;
  • Obey an isolation order issued to the Covered Employee;
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