Navigating COVID-19 Summer Employment Issues
Labor & Employment Alert 07/07/20 Judith A. William-Killackey, Otto W. Immel, Steve Kruzel
Unfortunately, the COVID-19 pandemic appears far from over -- with many states reporting increases in cases and reversing certain reopening measures. As a result, employers should be planning ahead for the potential impact on their workforces. And while the summer months typically involve vacations and summer camps for kids, this year looks markedly different due to COVID-19.
While not an exhaustive identification of all possible issues employers may face throughout the rest of the summer, the following are some of the top issues that employers should consider as they develop and/or modify any COVID-19 workforce plans to account for certain summer-related issues.
Employee Travel Considerations
Summer vacations are typically the norm for many employees across the United States. Whether a far-off destination or a few hours drive, many employees save much of their vacation time to use during the summer months. While COVID-19 has put a wrench in many individuals’ travel plans, some individuals have resumed personal travel, and we expect to see increases of personal travel over the coming months. Companies should avoid prohibiting employees from engaging in personal travel; however, you may ask that your employees report their personal travel and educate employees before they travel to high risk locations and inform employees of the potential ramifications regarding returning to work.
Notably, the EEOC has advised that employers may inquire if an employee has traveled to any locations identified by the Center for Disease Control and Prevention (“CDC”) as a Level 3 risk area. The CDC is regularly updating what it considers a Level 3 risk area, so companies should regularly check the CDC’s website for changes to its Level 3 designations. Companies should also consider requiring employees who have returned from a Level 3 risk area or other locations identified by public health officials as “high risk” to self-quarantine for 14 days following their return and to notify the employer if they experience any COVID-19 symptoms. Companies that intend to request personal travel information from employees should provide them with advance notice. Likewise, employers should consider up front what return to work and pay options will be available to the returning employee. An employer should inform the employee in advance of their taking time off if the employee will be required to or may telework during the self-quarantine, or if they must use PTO to avoid having the self-quarantine be unpaid (or more seriously, unexcused).
With respect to work-related travel, public health officials continue to advise that all non-essential travel be restricted. As employers may be subject to workers’ compensation claims if an employee is exposed to COVID-19 while traveling for work, your company may want to consider continuing to restrict work travel or, at a minimum, implement reporting and isolation requirements for employees traveling to high risk areas. Further, border closures and travel/business restrictions continue to vary by state and country, as do quarantine measures that may apply upon an employee’s arrival or return from travel. As a result, companies should consider work-travel restrictions in both the departing location and the travel destination, and you should advise your affected employees of those restrictions in advance of any work-related travel.
Managing Summer-Related FFCRA Requests
Employers covered by the Families First Coronavirus Response Act (“FFCRA”) should anticipate requests to continue, if not increase, throughout the rest of the summer. These requests may stem from the recent uptick in COVID-19 cases and/or the ongoing needs of employees to care for their children whose “virtual” school years have ended and are seeing pre-planned summer activities being cancelled. In addition, it is possible that a school reopening plan in the Fall will continue to contain virtual components affecting employees' ability to work.
As we have previously advised, the FFCRA provides paid leave for eligible employees through both the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”). Covered employers providing paid FFCRA leave in compliance with IRS documentation requirements are eligible for a payroll tax credit equal to the cost of the leave. Leave under the EMFLEA is available to employees who are unable to work/telework because they need to care for their children whose:
- School has been closed because of the coronavirus;
- Place of care has been closed because of the coronavirus; or
- Child care provider is unavailable because of the coronavirus.
Leave under the EPSLA includes the above, but is also more broadly available to employees who are unable to work/telework because they are:
- Subject to a quarantine or isolation order related to the coronavirus;
- Advised to self-quarantine due to concerns related to the coronavirus;
- Experiencing coronavirus symptoms and seeking medical diagnosis; or
- Caring for an individual who is subject to a quarantine or isolation order or has been advised to self-quarantine.
An employee may take FFCRA leave if his or her child’s care provider is unavailable due to a COVID-19-related reason. Lack of child care due to a summer camp closing as a result of a shelter-in-place order would typically constitute such an acceptable reason for FFCRA leave. The Department of Labor (“DOL”) has stated that employees will be eligible for FFCRA leave to care for their child if the pandemic disrupted a demonstrable plan to send their child to summer camp, even if the child wasn’t enrolled when the virus started. The DOL has explained that evidence that an employee enrolled their child in a now-closed camp, or that the child previously attended the camp, is “certainly sufficient” to entitle the worker to leave, but that other evidence (such as confirmation of a child on a waitlist) may suffice. However, the DOL has underscored that “a parent’s mere interest in a camp or program is generally not enough” to establish a lack of child care due to a camp closure.
With many children in need of care this summer and the potential for increased cases of COVID-19 among employees, employers should be prepared to address such requests from employees for the foreseeable future.
Monitoring the Workforce for Indicative Symptoms of COVID-19
Because reported cases of COVID-19 are increasing across the country, if your company has not already created one, you should ensure that you have a procedure in place for employees who present with or self-report COVID-19 symptoms or have tested positive. Such a policy should cover, at a minimum:
- Expectations for employees who disclose that they are sick;
- Procedures for symptomatic/positive cases (i.e., interview of employee to determine contacts, requisite disclosures to members of the workforce, and return-to-work procedures (including length of required self-isolation and whether return-to-work testing or documentation will be required));
- Plan for contact tracing in the worksite and notifying employees exposed (or potentially exposed) to COVID-19;
- Whether communication regarding a positive COVID-19 case will be sent to the entire workforce, worksite, or only exposed/potentially exposed employees; and
- Whether under state or federal law the employee can continue to work if exposed to a positive case; if so what additional measures need to be taken to allow the employee to continue to work, including additional PPE; and if not, if work from home is possible.
Assessing Operational Ability if Absenteeism Spikes
Your company should be prepared to address increases in absenteeism, particularly if COVID-19 cases continue to increase as they did throughout June. If your company has not done so already, consider whether to cross-train employees on key positions to ensure necessary staffing throughout the remainder of the summer and into the fall.
As reflected by the above, the summer months and current escalation in COVID-19 cases bring about many new practical and legal considerations, including for employers that have already developed a COVID-19 workforce plan. Quarles & Brady is committed to assisting employers in addressing such issues by considering compliance and risk as well as the unique aspects of your company’s work environment.
If you have any questions about COVID-19 employment issues, please contact your local Quarles & Brady attorney or: