Do employers have to report employee COVID-19 diagnoses, hospitalizations, and deaths?

The short answer, like many under the law, is maybe. Under 1904.39, employers must record and report the following to OSHA by calling or submitting a report online: a fatality (within 8 hours), in-patient hospitalization (within 24 hours), amputation (within 24 hours), or loss of an eye ( within 24 hours).

What if an employee is hospitalized due to COVID-19?

The incident is reportable only if the in-patient hospitalization occurs within 24 hours of a work-related exposure incident, and the employer “determines afterward that the cause of the in-patient hospitalization was a work-related case of COVID-19.”

What if an employee dies of COVID-19?

The answer is similar. The death must occur within 30 days of work-related exposure, and the employer “determines afterward that the cause of death was a work-related case of COVID-19.” The fatality must be reported within 8 hours of learning of the death and its link to a workplace exposure.

How do employers investigate causation?

It seems unlikely that an employer is going to be able to definitively trace causation to a work-related exposure, given the numerous possibilities for exposure and infection in the general public. Even OSHA recognizes that community spread and the contagious nature of COVID-19 make it difficult to investigate causation. OSHA expects employers to do the following and decide if work-related exposure was “more likely than not” a cause:

  1. Conduct a reasonable investigation.
    1. Ask the employee how he thinks he contracted COVID-19.
    2. Discuss the employee’s work and off-duty activities that may have led to exposure to COVID-19.
    3. Investigate potential exposure in the employee’s work area.
  2. Consider all evidence reasonably available to the employer, and consider new evidence that arises.
  3. An employee’s COVID-19 illness is likely work-related if:
    1. Several employees in the same area all contracted COVID-19 around the same time with no alternative explanation.
    2. It is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 with no alternative explanation.
    3. The employee’s job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission with no alternative explanation.
  4. An employee’s COVID-19 illness is likely not work-related if:
    1. The employee is the only worker to contract COVID-19 in his vicinity, and his job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
    2. The employee, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (a) has COVID-19; (b) is not a coworker, and (c) exposes the employee during the period in which the individual is likely infectious.

On December 27, 2020, the Consolidated Appropriations Act, 2021, HR 133, the most recent COVID-19 relief and stimulus bill, was signed into law. The law extends some of the previously enacted relief provisions and ends others. The key provisions are summarized below.

COVID-19 paid sick and family leave – voluntary but eligible for an employer tax credit

  • The obligation (for employers with less than 500 employees) to pay employees for sick and family leave related to coronavirus ended on 12/31/20. The latest COVID-19 relief bill extends the tax credit for 3 additional months, until 3/31/21. Employers may voluntarily provide sick and family leave, as they did in 2020 under the Families First Coronavirus Relief Act (FFCRA), and receive a 100% payroll tax credit against their payroll taxes for the amounts paid.
  • These credits can only be claimed for employees who did not use their available 80 hours of sick and family leave and 10 weeks of additional family leave in 2020. The 2021 leave must qualify as sick and/or family leave under the FFCRA-defined criteria.

Unemployment benefits – extended eligibility and new $300 federal supplement

  • Employees on layoff or terminated received a federal supplemental unemployment payment of $600 until July 31, 2020. A new federal supplement will provide $300 per week until March 14, 2021.
  • Unemployed workers will be eligible for a federal extension of benefits of 24 weeks beyond state unemployment eligibility (an additional 11 weeks beyond that provided by the Coronavirus, Aid, Relief, and Economic Security Act (CARES Act)).
  • Gig economy workers, self-employed individuals, and independent contractors will be eligible for Pandemic Unemployment Assistance through March 14, 2021. Their CARES Act unemployment benefits previously expired on December 31, 2020.

Employee Retention Credit – extended through June 2021 and expanded to PPP recipients

  • Employee retention tax credits were extended, in an effort to prevent layoffs, through June 30, 2021.
  • Employers may deduct 70% of qualified wages (formerly 50% under the CARES Act), up to $10,000 per quarter (formerly $10,000 per year under the CARES Act).
    • This will result in a credit of up to $14,000 of qualified wages per employee in 2021.
  • Employers must have a 20% decline in gross receipts, comparing each quarter of 2021 to 2019. Thus, if Q1 and/or Q2 of 2021 have gross receipts of 80% or less, when compared to that same quarter of 2019, the employer is eligible. Employers also can qualify by being partially or fully shut down due to government orders; however, odds are that these employers will also have a 20% decline in gross receipts.
  • Employers receiving PPP loan funds may deduct payroll costs that were not paid with forgiven PPP loan funds. (This change is retroactive to March 2020).
  • Group healthcare expenses not included in an employee’s gross wages may be treated as qualifying wages for this tax credit.

Dependent care and healthcare FSAs – rollover can be permitted and mid-year elections allowed

  • Employers are permitted–but not required–to allow FSA dependent care participants to carryover unused funds from 2020 and 2021 and use them for an additional 12 months after the plan year ends.
  • Employers are permitted–but not required–to allow healthcare FSA participants who terminate participation (due to termination of employment or any other reason) to use the funds until the end of the plan year.
  • Employers that want to take advantage of these optional FSA extensions must amend their FSA plan documents.
  • Employees also  may make mid-year contribution changes in 2021.

Paycheck Protection Program (PPP) Loans – second round of funds, tax deductibility, and expanded uses

  • Businesses are eligible for a second round of PPP loan funds to be used for payroll and other specified business expenses.
  • The eligibility criteria is targeted at providing money to smaller small businesses:
    • The threshold number of employees for eligibility was reduced from 500 to 300 employees.
    • The maximum loan amount was reduced from $10 million to $2 million. The maximum loan amount for any business is 2.5 times the average monthly payroll costs in the year prior to the loan, up to $2 million.
    • Business must have at least a 25% reduction in gross revenues from any quarter of 2019 to the same quarter of 2020.
    • Business must have been in existence prior to February 15, 2020 and apply for second draw funds by March 31, 2021.
  • Loan forgiveness is available if the business spends at least 60% of the funds on payroll costs over a time period of its choosing of between 8 and 24 weeks.
  • The amounts forgiven under the PPP loan program are also tax deductible as business expenses, if they would otherwise qualify under the tax code.
  • The definition of eligible “other” (non-payroll) business expenses was expanded to include:
    • Worker protective equipment,
    • Supplier costs,
    • Costs of perishable goods,
    • Property damage due to public disturbances in 2020 that were not covered by insurance (e.g., damage caused by vandalism and looting ),
    • Technology operations expenses.
  • The prior list of other (non-payroll) eligible expenses included rent or lease payments, mortgage payments, and utilities. Those remain eligible business expenses for PPP loan forgiveness.

Student loan and educational expense tax exclusion – extended

  • The CARES Act allowed employers to pay employees up to $5,250 per year to assist employees with education expenses in 2020. The recent COVID-19 relief bill allows employers to pay up to $5,250 to each employee for the next five years (through 2025) for education expenses and student loan principal and interest repayment.

I had been receiving calls about whether employers can require employees to receive the COVID-19 vaccine once it is available to the general public. My guidance had been based on instinct and outdated guidance on pandemic flu. Yesterday, the EEOC released guidance on mandatory COVID-19 vaccinations. The long and short of it: It is better to strongly encourage vaccination than require it, even if legally permissible. If voluntary vaccination is provided in the workplace, it is best to use a third party provider to administer the vaccines.

Employers who want to require COVID-19 vaccination should follow the following framework to avoid religious discrimination under Title VII of the Civil Rights Act and disability discrimination under the Americans with Disabilities Act (ADA):

  1. Does an employee have a sincerely held religious belief, practice, or observance that would prohibit vaccination?
    • If so, is there a reasonable accommodation that would allow vaccination, without posing an “undue hardship” on the employer (more than a de minimis cost or burden)?
    • If not, do not require vaccination. The employer must then consider how to accommodate the unvaccinated employee, such as through telework, without posing an “undue hardship” on the employer. The employer may exclude the employee from the workplace. The employer may not automatically terminate the employee.
  2. Does the employee have a medical condition (i.e., disability) that would prohibit vaccination?
    • If so, is there a reasonable accommodation that would permit vaccination?
      • If so, utilize the reasonable accommodation and require vaccination (highly unlikely).
      • If not, consider whether the employee poses a “direct threat” to workplace health and safety by being unvaccinated.
        • If the employee is a direct threat, the employer must consider reasonable accommodations, like teleworking, to mitigate the risk. The employer may only prevent the employee from working if there is no way to mitigate the direct threat posed by the unvaccinated employee. The employer must consider paid and unpaid leave options as an accommodation before considering termination.
        • If the employee is not a direct threat, do not require vaccination and permit the employee to work as normal.
        • In assessing the “direct threat,” employers should consider the prevalence of employees who are vaccinated and the amount of contact between the unvaccinated employee and others.

The EEOC also stated that vaccination itself is not a prohibited medical examination under the ADA. Pre-screening questions asked before the vaccination may be a medical examination (and elicit medical information) if the vaccination is conducted by the employer. If the employer administers the vaccine, the pre-screening questions must be “job-related and consistent with business necessity”–meaning that the employer must show that the employee who does not answer the questions will pose a “direct threat” to workplace safety or health. This “direct threat” analysis is not necessary: (1) if the vaccination is conducted on a voluntary basis or (2) if the vaccination is conducted by a third party without a contract with the employer, such as a pharmacy or healthcare provider. An employer is wise to utilize a third party provider to screen employees for vaccination and administer the vaccines, even if the vaccination occurs on employer property. Voluntary vaccination also is advisable.

Additionally, employers can require proof from employees of vaccination. Asking additional questions about why an employee is not vaccinated could run afoul of the ADA or the Genetic Information Nondiscrimination Act (GINA) by eliciting disability-related information and/or genetic information (e.g., family history inquiries).

The EEOC recently launched a new tool that provides access to industry aggregated data collected from annual employer EEO-1 reports. The new tool is called “EEOC Explore,” available here. Data on employment by race, ethnicity, and gender can be searched by EEO-1 job category in an aggregate format organized by NAICS industry code. Presently, only 2017 and 2018 data is available, but more searchable data is forthcoming. In addition to searching by job category, individuals can limit searches geographically by region, division, state, and county.

Happy Veterans’ Day to all of the veterans out there. It also is a great day to remember that if your business has a contract with the federal government in excess of $100,000, or your business has a contract with another company that has a covered federal contract, you are covered by VEVRAA, the Vietnam Era Veterans’ Readjustment Assistance Act. This means that your business must have an annual affirmative action plan and have certain outreach, recruitment, hiring, and data collection responsibilities regarding employment of veterans. It is likely that your business also would have affirmative action responsibilities under Section 508 of the Rehabilitation Act (affirmative action for the disabled) and Executive Order 11246 (affirmative action for women and minorities).

Two days after you get a notice about a compliance audit is not the time to think about assessing affirmative action law coverage and preparing your annual affirmative action plan.

The CDC made it much more difficult for employers, schools, and businesses to determine who should be quarantined when a confirmed positive COVID-19 infection occurs. A close contact is now defined as being within 6 feet of an infected person for 15 cumulative minutes in a day–versus 15 consecutive minutes at one time.

Last week, on October 21, 2020, the CDC updated its guidelines on what it means to be in “close contact” with someone who has COVID-19. Previously, the guidance defined a “close contact” as when a person is within 6 feet of an infected person for 15 consecutive minutes. The CDC updated that definition to state that the 15 minutes are cumulative over a 24-hour period. The relevant time period of exposure is 2 days before symptoms started or 2 days prior to the positive COVID-19 test and runs through the time the infected person began isolation. The CDC makes no distinction based on whether the infected person or the person in close contact were wearing facial coverings; however, many county health departments do make this distinction in defining close contacts for purposes of ordering quarantine.

What prompted the change? There was evidence that cumulative short interactions can result in transmission of COVID-19–even when wearing facial coverings. Further, some schools were rotating children every 14 minutes to avoid anyone being “exposed” under the CDC guidance.

For employers, this now means that, for each employee with a confirmed case of COVID-19, employers will need to add up the time each employee was in contact with the infected employee during each workday. If at all possible, potentially exposed employees (even without symptoms) should work from home for 14 days. If ordered by the local health department to quarantine, the employee should return to work when released from quarantine.

As a reminder, employees with confirmed or suspected COVID-19 should remain home until:

  • If not tested or waiting for results, at least 24 hours passed since there was a fever (without fever reducing medication) and other symptoms have improved AND 10 days passed since symptoms began;
  • If tested positive for COVID-19 and symptomatic, at least 24 hours passed since there was a fever (without fever reducing medication) and other symptoms have improved AND 10 days passed since symptoms began; or
  • If tested positive for COVID-19 and asymptomatic, at least 10 days passed since the positive test.

Requiring negative test results for a return to work is not advised.

Allowing non-exempt workers to work unsupervised from home has always been a big no-no in the wage-hour world. Allowing this exposes the employer to claims for unpaid hours, and unpaid overtime, from  federal, state, and local laws with unforgiving penalties. Recognizing the number of non-exempt employees working from home during the coronavirus pandemic, the federal Department of Labor (DOL) released guidance on tracking telework. The key is having a clear tracking method in place to document time worked and a policy that encourages accurate time reporting.

The DOL reminds employers that employees should be paid for those hours that they were requested to work, as well as those that they worked without being requested to do so. If an employer “knows or has reason to believe” that an employee is performing work, the time must be compensated. An employer has reason to know that an employee is working when they should have acquired knowledge of the work through “reasonable diligence.” Reasonable diligence is what the employer “should have known”–not what it “could have known” if it dug through every record to reveal uncompensated work. For example, the employer is not required to comb through and review electronic device access records for every non-exempt employee to uncover off-the-clock access. However, where an employer is aware of frequent off-hours work that is uncompensated, e.g., frequent emails and text messages about work outside normal work hours, it could result in constructive knowledge of uncompensated time and possible liability.

During the pandemic, employers can exercise this “reasonable diligence” by implementing a reasonable time reporting procedure for scheduled and nonscheduled time worked to ensure that employees are accurately compensated. If an employer has a system in place, and an employee fails to report unscheduled time worked, the employer would have a defense to a claim for unpaid wages. Employers should encourage reporting hours worked and not discourage or impede accurate time reporting. For example, a policy prohibiting and refusing to compensate for unauthorized overtime would be a policy that discourages accurate time reporting. (Even unauthorized overtime should be paid, and the employee can be disciplined for his/her violation of policy.) In addition, a best practice is to include a requirement that the employee verify and confirm that the time sheet is accurate on a weekly or bi-weekly basis.

The U.S. Department of Labor (DOL) revised its April 1, 2020 regulations about who qualifies for emergency sick leave under the Families First Coronavirus Response Act (FFCRA) after parts of its prior regulations were struck down by a New York federal court on August 3, 2020 (see earlier blog post). The NY court struck down four provisions of the prior regulations:

  1. The requirement that work be “available” in order to take FFCRA leave from work;
  2. The requirement that all intermittent use of FFCRA leave requires employer permission;
  3. The broad definition of the “health care provider” exclusion from coverage; and
  4. The requirement of documentation for taking paid FFCRA sick leave.

The new temporary rules take effect September 16th. The key portions of the new rules are as follows:

  • Employees can only take FFCRA sick leave if there is work from which to take leave–meaning that employees on layoff or furlough are not eligible (re-affirming the provision that the court struck down);
  • Intermittent leave is only available with employer permission for childcare or school unavailability and for intermittent telework (re-affirming the provision that the court struck down);
  • The definition of a “health care provider” (that is exempt from FFCRA paid leave) was narrowed to those employees “capable of providing healthcare services” such as “diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care”;
  • Employees must provide documentation to support the need for leave “as soon as practicable,” which, in most cases, will be when the notice is provided; and
  • Codified Q&A documents issued by the DOL since the initial regulations were published.

Notably, the NY court struck down the original regulations requiring available work, but the DOL reinstated the requirement. The DOL explained that the work-availability requirement was intended to apply to all forms of expanded FMLA and emergency sick leave and that the FFCRA statutory language supports that interpretation. Employees on furlough or laid off from work must rely on other programs for pay, such as Paycheck Protection Program funds or expanded unemployment benefits. The DOL cautioned, however, that employers may not withhold work in order to prevent use of FFCRA paid sick and family leave. Doing so would be considered actionable retaliation under the FFCRA.

As for intermittent leave, the DOL reaffirmed its position that intermittent leave requires employer permission and is only available for school and childcare unavailability and intermittent telework. To allow intermittent leave for care for a family member who is ill with COVID-19 or quarantined would be a safety risk to the workplace by increasing the likely spread of COVID-19. Employees who are teleworking may take intermittent leave with employer permission for any of the available FFCRA sick and family leave reasons because the exposure risk in the workplace is eliminated. Interestingly, the DOL stated:

the employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent. In an alternate day or other hybrid-attendance schedule implemented due to COVID-19, the school is physically closed with respect to certain students on particular days as determined and directed by the school, not the employee.

It is only when the intermittent leave is the employee’s choice that it requires employer approval.

The temporary regulations remain in place until December 31, 2020.

 

On September 14, 2020, Ohio passed and the Governor signed House Bill 606, which provides qualified immunity to healthcare providers and employers who are accused of spreading COVID-19. It will become effective on December 13, 2020 (90 days after signed into law).

Section 1 of the law provides qualified immunity to healthcare providers providing services during the coronavirus pandemic. It applies to actions taken from March 9, 2020 to September 30, 2021. The new law does not apply if the provider’s actions amounted to reckless disregard for the consequences to the patient’s life or health or intentional misconduct.

Section 2 applies to employers and businesses faced with lawsuits from employees and the public, stemming from injury, death, or loss from alleged exposure in the place of business. It applies to lawsuit alleging exposure, transmission, or contraction of COVID-19 in a place of business, unless the business owner’s (or employer’s) actions amounted to reckless conduct or willful misconduct. Reckless conduct is defined as disregarding a substantial and unjustifiable risk of exposure or transmission of COVID-19.

Government orders, recommendations, and guidelines may not be used to establish the requisite duty of care because, according to the statute, recommendations are often changing and “often not based on well-tested scientific information.” There is no definition of “willful misconduct” in either section of the law.

HB 606 is a temporary law, and it will expire on September 30, 2021.