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U.S. COVID-19: Employee Temperature Screening: What Employers Need To Consider When Deciding Whether To Implement a Screening Process

In light of concerns about the spread of the novel coronavirus in the workplace, employers are confronting important questions pertaining to the screening of employees for COVID-19 symptoms, including as it pertains to taking employees’ temperatures: May (or must) we screen employees for fevers, and if so, how should we implement such a practice?

In Part 1 of this two-part blog series, we address issues relating to the decision of whether employers may (or must) implement a temperature screening protocol.  In Part 2, we will provide guidance on how to do so.

Non-Discriminatory Temperature Screening Is Permitted

Taking an employee’s temperature is considered a medical exam under the Americans with Disabilities Act (“ADA”) and would normally be subject to strict restrictions. However, the federal Equal Employment Opportunity Commission (“EEOC”) has expressly stated in updated guidance that employers are permitted to screen employees for fevers due to the COVID-19 pandemic.  Some state agencies are following suit; for example, the California Department of Fair Employment and Housing recently issued guidance indicating that temperature checks are permissible and non-discriminatory under the present circumstances, so long as they are conducted on all personnel entering a facility.

Federal Guidance Supports Temperature Screening In Certain Circumstances

At the federal level, the Centers for Disease Control and Prevention (“CDC”) has advised all employers to consider “community level spread” of COVID-19 when determining appropriate workplace precautions, stating that workplaces in communities with minimal to moderate community spreading should, among other things, “[c]onsider regular health

U.S. COVID-19: DOL (Yet Again) Publishes Revised Guidance on the Families First Coronavirus Response Act

This weekend, the Department of Labor (“DOL”) released yet another set of updated and revised Questions and Answers (“Q&A”) regarding the Families First Coronavirus Response Act (“FFCRA”).  This updated informal guidance comes just days after the DOL published its formal Temporary Rules (“Rules”) interpreting the FFRCA.  As we’ve summarized in earlier posts, the FFCRA was signed into law on March 18, 2020 and generally requires U.S. employers with fewer than 500 employees to provide paid sick leave (“Paid Sick Leave”) and emergency family and medical leave (“Emergency FMLA Leave”) benefits to employees in connection with COVID-19.

The FFCRA’s Paid Sick Leave and Emergency FMLA Leave provisions became effective on April 1, 2020; however, as the DOL previously announced, to enable covered employers to come into compliance with the new law, the DOL will observe a temporary period of non-enforcement through April 17, 2020.  This temporary period of non-enforcement only applies if an employer makes a reasonable, good faith attempt to comply with the FFCRA.  As such, if they have not already, employers should take steps to comply with the FFCRA immediately, and should continue to monitor and incorporate guidance from the DOL into their policies and practices.

Below is a summary of new or revised guidance outlined in the updated Q&A (that was not previously summarized in our earlier posts) that employers should consider as they comply with the FFCRA.  Links to our posts summarizing the earlier guidance are available here.

Revised Q&A Guidance

U.S. COVID-19: DOL Publishes Temporary Rules on the Families First Coronavirus Response Act

Over the past two weeks, the Department of Labor (“DOL”) has issued a variety of informal guidance regarding the Families First Coronavirus Response Act (“FFCRA”).  The FFCRA became effective on April 1, 2020, and on that same day, the DOL published a set of temporary rules interpreting the law (the “Rules”), which are effective immediately.  As we’ve summarized in earlier posts, the FFCRA was signed into law on March 18, 2020 and generally requires U.S. employers with fewer than 500 employees to provide paid sick leave (“Paid Sick Leave”) and emergency family and medical leave (“Emergency FMLA Leave”) benefits to employees in connection with COVID-19.

Our summaries of the DOL’s informal guidance are available here, here, here, here, and here.  Below is a summary of new or revised information outlined in the Rules (that was not previously summarized in our earlier posts) that employers should consider as they begin complying with the FFCRA.

  • Covered Employers:
    • 500-Employee Threshold: The Rules confirm that the following individuals do not count toward the 500-employee threshold:
      • Independent contractors who provide services for an employer; and
      • Employees who have been laid off or furloughed and have not subsequently been reemployed.[1]
        • In light of this rule, employers who are above but relatively close to the 500-Employee Threshold should realize that, going forward over the course of 2020, layoffs and/or furloughs could bring them under the threshold and thus require compliance

U.S. IRS Publishes Much-Anticipated Guidance on Documents that Employers Must Retain Under the Families First Coronavirus Response Act

The Families First Coronavirus Response Act (“FFCRA”), which generally requires U.S. employers with fewer than 500 employees to provide paid sick leave (“Paid Sick Leave”) and emergency family and medical leave (“Emergency FMLA Leave”) benefits to employees in connection with COVID-19, officially goes into effect today.  This also means that employers are now able to immediately seek a quarterly payroll tax credit equal to 100% of the qualified Paid Sick Leave and Emergency FMLA Leave wages paid to employees under the FFCRA.

As we summarized in an earlier post, this past weekend the Department of Labor (“DOL”) revised its guidance to refer employers to the Internal Revenue Service (“IRS”) for questions regarding what documentation employers must retain in order to receive a tax credit.  Late on March 31, 2020, the IRS published this much-anticipated guidance.  Below are highlights from the IRS’s guidance on document collection and retention for employers to consider as they begin to comply with the FFCRA.  Summaries of other aspects of the IRS’s guidance will be available soon.

  • Leave for Which Tax Credits are Available: The IRS guidance confirms that tax credits are available only for Paid Sick Leave and Emergency FMLA Leave taken between April 1, 2020 and December 31, 2020.  Moreover, tax credits are available only for Paid Sick Leave and Emergency FMLA Leave wages that are actually paid.  For example, if an employer is not required to pay certain Paid Sick Leave and/or Emergency FMLA Leave wages (because

US DOL Publishes Revised Guidance on the Families First Coronavirus Response Act

DOL Publishes Revised Guidance on the Families First Coronavirus Response Act

This weekend, the Department of Labor (“DOL”) released a revised and updated set of Questions and Answers (“Q&A”) regarding the Families First Coronavirus Response Act (“FFCRA”).  As we’ve summarized in earlier posts, the FFCRA was signed into law on March 18, 2020 and generally requires U.S. employers with fewer than 500 employees to provide paid sick leave (“Paid Sick Leave”) and emergency family and medical leave (“Emergency FMLA Leave”) benefits to employees in connection with COVID-19.

Notably, the new guidance includes a revision to the guidance that was just issued last Thursday, March 26, regarding what documentation employers must collect from employees requesting leave under the FFCRA.  Our summary of the DOL’s initial guidance is available here, but please note that in light of the DOL’s updated guidance, employers should rely on this post’s summary of documentation requirements.  The new guidance does not explicitly outline what documentation employers must collect.  Instead, it notes that if employers want to seek a tax credit for the Paid Sick Leave or Emergency FMLA Leave, they should “retain appropriate documentation.” The DOL then refers employers to consult with “Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.”

In addition to this revision, the updated guidance includes a number of questions and answers regarding new and key

U.S. DOL Publishes Additional Guidance on the Families First Coronavirus Response Act

On March 26, 2020, the U.S. Department of Labor (“DOL”) released an updated set of Questions and Answers (“Q&A”) regarding the Families First Coronavirus Response Act (“FFCRA”).  As we’ve summarized in earlier posts, the FFCRA was signed into law on March 18, 2020 and generally requires U.S. employers with fewer than 500 employees to provide paid sick leave (“Paid Sick Leave”) and emergency family and medical leave (“Emergency FMLA Leave”) benefits to employees in connection with COVID-19.

The updated Q&A builds on guidance and model notices that the DOL published earlier this week.  Below are some highlights from the updated Q&A for employers to consider as they prepare to comply with the FFCRA:

  • Documentation: Employers must require employees to provide appropriate documentation to support their need for Paid Sick Leave and Emergency FMLA Leave. This documentation must be retained if an employer intends to seek a tax credit for the leave.
    • For Paid Sick Leave – This documentation should include the employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work (including telework) for that reason, and the date(s) for which leave is requested. Employers should also require documentation demonstrating the reason why the leave is necessary, including: (i) the sources of any quarantine or isolation order (including a copy of any federal, state, or local quarantine or isolation order); and/or (ii) the name of the health care provider advising the employee to self-quarantine, along with a note

DOL Publishes Model Notice for the Families First Coronavirus Response Act

On March 25, 2020, the Department of Labor (“DOL”) published model notices for federal and private employers regarding employees’ rights under the Families First Coronavirus Response Act (“FFCRA”).  As we’ve summarized in earlier posts, the FFCRA was signed into law on March 18, 2020 and generally requires U.S. employers with fewer than 500 employees to provide paid sick leave and emergency family and medical leave (“Emergency FMLA”) benefits to employees in connection with COVID-19.

The model notices, along with Frequently Asked Questions regarding the notices, follow a series of other informal guidance issued by the DOL in the last week.  Below are some highlights from the new guidance for employers to consider regarding the notices:

  • Posting Requirement: All covered employers, including small businesses, must post the model notice.
  • Posting Location: Employers must post the notice either in one location where all employees will see it or in various locations to accommodate all employees if no single location is available.  If workplaces are closed due to local stay-at-home orders, physical posting may not be possible at this time, in which case electronic posting is probably required.
  • Electronic Posting: Employers may, but are not required to, satisfy their posting obligations by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.
  • Languages Other than English: The DOL is working on non-English versions of the model notices, but employers are not required to post the notices in any

DOL Publishes Informal Guidance on the Families First Coronavirus Response Act

On March 24, 2020, the Department of Labor (“DOL”) released an initial set of Questions and Answers (“Q&A”) regarding the Families First Coronavirus Response Act (“FFCRA”).  As we’ve summarized in earlier posts, the FFCRA was signed into law on March 18, 2020 and generally requires U.S. employers with fewer than 500 employees to provide paid sick leave and emergency family and medical leave (“FMLA”) benefits to employees in connection with COVID-19.

The Q&A is the latest in a series of publications from the DOL and the Internal Revenue Service to shed light on the FFCRA.  Below are some highlights from this guidance for employers to consider as they prepare to comply with the FFCRA:

  • Effective Date: The FFCRA will become effective on April 1, 2020 and will expire on December 31, 2020.
  • Retroactivity: Benefits under the FFCRA are not retroactive.  Any leave provided to employees prior to April 1, 2020 will not count toward the employer’s leave obligations under the FFCRA, and cannot form the basis for payroll tax credits.
  • Employee Threshold Requirements Generally:
    • The 500-employee threshold is calculated based on the number of US employees an employer has as of the date the employee’s leave is requested.
    • The following types of employees should be included in an employer’s calculation: full-time employees, part-time employees, employees on leave, temporary employees who are jointly employed, and day laborers supplied by a temporary agency.
    • Independent contractors (as defined under the Fair Labor Standards Act [“FLSA”]) are

Families First Coronavirus Response Act: Emergency Family and Medical Leave Provisions (Part 2 of 2)

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “FFCRA or Act”).  The FFCRA provides for two types of leave for employees:  Paid Sick Leave (up to 80 hours) and Emergency Family and Medical Leave (up to 12 weeks of combined paid and unpaid leave).  This post is part 2 of 2 summarizing the requirements of the FFCRA and focuses on Emergency Family and Medical Leave.

  • Scope: Unlike the paid sick leave provisions of the FFCRA, the emergency family and medical leave provisions are not standalone law.  Rather, these provisions amend the Family and Medical Leave Act (“FMLA”), thus providing for “Emergency FMLA” leave.  However, the amendments (such as the changed definition of Covered Employer and Eligible Employee) apply only to Emergency FMLA provisions and do not amend the pre-existing provisions of the FMLA.
  • Effective Dates: The Act will become effective no later than April 2, 2020 and expire on December 31, 2020.
  • Covered Employer: Anyone who has fewer than 500 employees[1] and otherwise satisfies the elements of the definition of “Employer” under the FMLA.[2]
    • EXCEPTIONS:
      • DOL may issue guidance excluding employers with fewer than 50 employees from the requirement to provide Emergency FMLA, if the Emergency FMLA would “jeopardize the viability of the business as a going concern.”
      • Regardless of whether such guidance is issued, employers with fewer than 50 employees will not be subject to an FMLA action by employees for failing to provide

Families First Coronavirus Response Act: Paid Sick Leave Provisions (Part 1 of 2)

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “FFCRA or Act”).  The FFCRA provides for two types of leave for employees:  Paid Sick Leave (up to 80 hours) and Emergency Family and Medical Leave (up to 12 weeks with a combination of paid and unpaid leave).  This post is part 1 of 2 summarizing the requirements of the FFCRA and focuses on Paid Sick Leave. 

  • Effective Dates: The Act will become effective no later than April 2, 2020 and expire on December 31, 2020.
  • Department of Labor (“DOL”) Obligations: Must issue a “Model Notice” for employers to post within 7 days of enactment and guidance within 15 days of enactment.
  • Covered Employer – Anyone engaged in commerce with fewer than 500 employees,[1] as defined under the Fair Labor Standards Act (“FLSA”).
    • EXCEPTION – The DOL may issue guidance excluding employers with fewer than 50 employees from the paid leave requirements of the Act if the paid sick leave would “jeopardize the viability of the business as a going concern.”
  • Eligible Employees – All employees (as defined under the FLSA), regardless of length of employment, and regardless of whether full-time or part-time.
    • EXCEPTION: If an employee is a healthcare provider or an emergency responder, the employer may choose not to provide paid sick leave to those employees.  (The DOL may issue guidance on this point.)
  • Affirmative Requirements for Employers under the Act:
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