News
March 23, 2020
Tennessee Employers Facing Coronavirus Issues 2020
LEGAL ISSUES FOR TENNESSEE EMPLOYERS (ESPECIALLY SMALLER TO MID-SIZED EMPLOYERS) DURING COVID-19 (CORONAVIRUS) PANDEMIC
This discussion is not intended as specific legal advice regarding any employer’s situation. It is provided as a general overview only, and each employer’s situation and circumstances must be considered individually. Employers and individuals should consult their own legal advisor in order to obtain specific legal advice regarding any given situation. Further, legal obligations regarding these matters are fluid and are changing, so employers should keep abreast of changes, because the discussion below is only current as of the date of this posting.
The Families First Coronavirus Response Act was passed and signed into law 03/18/20. However, it takes effect 04/02/20 and expires on 12/31/20, so it is designed as a temporary law (although it could be extended). This law requires certain employers to provide emergency limited paid and unpaid leave under the FMLA, as well as emergency paid sick leave in certain, limited circumstances.
The Family and Medical Leave Act (FMLA) was originally written to only apply to larger employers, i.e., those with at least 50 employees, and it was originally written to only apply to certain employees, e.g., those who work at least 1,250 hours/year, and those who have been employed at least 12 months. Because of the 50-employee rule, many smaller employers did not have to worry about compliance with the FMLA.
However, these new, temporary obligations under the “Families First Act” apply to all employers with fewer than 500 employees, so these new obligations do apply to smaller employers.
Under the “Families First Act”:
• An employer who is a “healthcare provider” or emergency responder can exclude employees from coverage.
• The requirements apply to both full-time and part-time employees.
• The Department of Labor has the option of exempting employers with less than 50 employees if it determines that providing leave “would jeopardize the viability of the business as a going concern.” But that is a determination which must be made by the DOL, not by the employer.
• Paid sick leave must be provided to employees who are unable to work or telework as follows:
o At regular pay, if the employee is subject to a local quarantine or isolation order related to COVID-19
o At regular pay, if the employee has been advised by a health professional to self-quarantine related to COVID-19
o At regular pay, if the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis
o At two-thirds of regular pay, if the employee is caring for another person who is either subject to a local quarantine, an isolation order, or has been advised by a health professional to self-quarantine, related to COVID-19
o At two-thirds of regular pay, if the employee is caring for a son or daughter because school has been closed or the regular childcare provider is not available
o At two-thirds of regular pay, if the employee is experiencing any other substantially similar condition
• Full-time employees are eligible for paid sick leave for up to 80 hours
• Part-time employees are eligible for paid sick leave up to the average number of hours they work, or are expected to work, in a two week period
• There are “caps” on paid leave:
o For the three reasons identified above as leave “at regular pay,” the cap is $511/day and/or a total of $5,110
o For the three reasons identified above as leave “at two-thirds of regular pay,” the cap is $200/day and/or a total of $2,000
• The emergency paid leave is supposed to be supplemental, so the employer cannot require employees to use other paid leave (sick days, vacation, or paid time off) before claiming the new emergency paid leave.
• Employers will be required to post notices (posters) regarding these provisions in conspicuous places. The DOL is supposed to be coming up with the posters.
• If the Act expires on 12/31/20, as planned, then any unused sick pay does not carry over into 2021. In addition, paid sick leave ends when the employment ends.
• Employers who provide such leave are supposed to be eligible for tax credits. However, employers will need to consult their tax advisors or CPAs regarding details of the tax credits.
• For employers who were large enough to be covered by the FMLA generally (i.e., 50 employees), there are provisions affecting other FMLA obligations (in particular, unpaid leave), when the employee needs time off because a school is closed or a childcare provider is unavailable.
In addition, if a business is closing or reducing its hours due to COVID-19, then the affected employees will be eligible to file for unemployment benefits under Tennessee Law. The Tennessee Department of Labor and Workforce Development has a FAQ section on its web-site for both employers and employees about filing “mass unemployment claims,” how to do that, what happens if the employer instead elects to allow each affected employee to file an individual unemployment claim, etc. Those FAQs for employers can be found at https://www.tn.gov/workforce/covid-19/employers.html, and those FAQs for employees can be found at https://www.tn.gov/workforce/covid-19/employees.html. In general, the TDOL encourages employers to file a “mass claim” by submitting a “mass layoff form,” which will expedite claim processing; plus, if the employer instead elects to let each affected employee individually file an unemployment claim, the employer will have to respond separately to each individual employee’s claim.
Some other general employment law considerations:
• Under OSHA, employers are responsible for providing employees with safe workplaces. OSHA has recently published a guidance for preparing workplaces for COVID-19, which divides workplaces and work operations into four “risk zones.” I will not attempt to summarize that guidance here.
• If an employee has symptoms of COVID-19, the employer can require the employee to leave and go home, and/or get tested, and the EEOC will not consider that an ADA violation. In fact, the employer can use an infrared thermometer and take the employee’s temperature at work, and that is not a violation. The employer can also require an employee to notify the employer if the employee has been exposed to someone with symptoms, or has tested positive for the virus.
• Employers should not open childcare centers or “kid zones,” because they are regulated by the State and this could result in a violation of those regulations.
• If an employer is going to utilize “teleworking” or remote working, it should adopt policies which establish expectations (e.g., can the employee only work from home, or also from other places; how will “meetings” be conducted; what devices may be used and what protections are required for sensitive information; etc.).
• Employers should continue to treat all employee health-related information as confidential.
• Remember that for salaried, exempt employees (i.e., exempt from overtime under the FLSA), an employer cannot “dock” or deduct salaries pay for partial day absences, so do not adjust an exempt employee’s pay, for example, because they are only teleworking a few hours a day. Whole-day absences can result in deductions, if that is the employer’s policy and if it is uniformly applied.
View all news items by Bob E. Lype