As the COVID-19 pandemic continues to drag on, employers are still grappling with the proper application of and compliance with the Families First Coronavirus Response Act (“FFCRA”), which is currently in effect until December 31, 2020. The Department of Labor has issued ongoing guidance in an effort to assist employers and address legal challenges to its interpretation of the FFCRA, including a ruling by a New York federal court that struck down several key provisions of the Act. The most recent revised DOL guidance, which went into effect on September 16, 2020, contains the following significant reaffirmations and revisions.
- Employees may only take Emergency Paid Sick Leave (“EPSL”) and/or Expanded Family and Medical Leave (“EFML”) if they have work that is actually available to them but are unable to perform it because of COVID-19-related reasons.
- In general, employees still must obtain employer approval to take EPSL and EFML on an intermittent basis. However, the employer’s approval is NOT required when an employee takes EFML on an irregular basis in full-day increments to care for a child whose school is operating on a hybrid schedule (alternating between in-person and virtual learning).
- The definition of “health care providers,” who may be excluded by employers from eligibility for leave under the FFCRA, has been narrowed. The revised definition includes employees who meet with the definition of health care provider under the FMLA, such as medical doctors, clinical psychologists, nurse practitioners, physician assistants and clinical social workers, as well as employees who provide diagnostic services, preventative services, treatment services or other services necessary to providing patient care. The revised definition specifically excludes employees who work in IT, human resources, records, billing and building maintenance.
- Employees should provide documentation regarding the need for leave under the FFCRA “as soon as practicable,” which will typically be when the employee provides notice of the basis for the leave.
In addition to this most recent guidance, the DOL also issued other guidance and helpful questions and answers in the last several months, including the following highlights.
- Employees may not take EFML if the school the employee’s child attends provides a choice between in-person and virtual learning and the employee elects for the child to attend remotely.
- Employers may require an employee who it knows has had close contact with a person infected with COVID to work remotely or take leave until the employee has tested negative for COVID. Employers may NOT require that an employee present a negative test simply because the employee took leave under the FFCRA.
- Employees are limited to 80 hours of EPSL and 12 weeks of EFML. If an employee took the maximum amount of leave prior to being furloughed or temporarily laid off, then the employee is not entitled to additional leave after the employee returns to work. The time spent not working while furloughed or temporarily laid off does not count as leave.
- Employers may not extend the time that an employee is furloughed or temporarily laid off because the employer is aware that the employee will need to take leave under the FFCRA upon returning to work.
- Employers that permit non-exempt employees to work flexible hours while working remotely are required to compensate employees for all hours actually worked, but employers are not required to include as hours actually worked all time between the performance of the first and last activities of the workday.
- Employers are not required to pay employees hazard pay during the COVID-19 pandemic under
the FLSA, but they may be required to do so under state or local law.
As the last few months have shown us, the laws and related guidance surrounding the COVID-19 pandemic are expanding and changing on a regular basis. The Burch Porter & Johnson employment law team continues to closely track these developments and is here to help.
Recently, continuous changes to the issuance of unemployment benefit assistance have left both employers and employees with questions about the current state of benefits. Many provisions of the federal CARES Act, including a 13-week extension on the maximum length of benefits and who is eligible for unemployment benefits, remain in effect through December 31, 2020. New unemployment benefit claims are down across the State of Tennessee, and changing state and federal legislation continue to impact the amount of benefits received, how employers are charged, and the requirements to remain on benefits. Our firm is here to assist on any questions you have regarding changes for unemployment benefits, advice for when to appeal a claim, or to represent you in an appeal hearing.
Updates for Claimants
As you are likely aware, the $600 per week federal supplemental benefit expired in July 2020. For a short period of time, an executive order issued by President Trump authorizing the Federal Emergency Management Agency (“FEMA”) to administer additional assistance was in effect in Tennessee. That order authorized FEMA to assist states with a supplemental $300 per week benefit to all claimants. The additional federal aid through FEMA’s Lost Wages Supplemental Payment expired on September 5, 2020. Claimants in Tennessee are thus only eligible up to the current applicable maximum state benefit amount, which is $275 per week. A number of federal legislative proposals have arisen in recent months regarding supplemental benefits, which may change that amount moving forward.
Additionally, during the COVID-19 pandemic, the Tennessee Department of Labor temporarily suspended the work search requirement for claimants. The work search requirement was re-implemented by TDOL on Sunday October 4, 2020, meaning most claimants will be required to submit weekly active work-searches to remain eligible for benefits to demonstrate that they remain unemployed by no fault of their own. Claimants who have a definitive return to work date from a temporary layoff will not need to complete this requirement. Some other exceptions apply to self-employed workers. Information on the work search requirement is available at https://www.tn.gov/workforce/general-resources/news/2020/9/14/work-search-requirement-resumes-for-unemployment-claimants.html.
Updates for Employers
Most significantly for employers, the Commissioner of the Department of Labor and Workforce Development has suspended Tennessee Code Annotated § 50-7-403(d), pursuant to recent state legislation authorizing such action. Consequently, “base period” employers—or those employers that are not the separating employer but employed a claimant in one of the preceding four of the past five calendar quarters—will not be charged or attributed any amount to their tax account. This suspension applies to all unemployment claims filed between March 15, 2020 and September 30, 2020. Employers should keep this in mind in determining whether to appeal a claimant’s claim for unemployment benefits where they are not the separating employer; an appeal may waive their right to not be charged. Overall, this suspension should reduce the impact of the COVID-19 pandemic on employer’s tax rate and charges for benefits.
Finally, employers should keep in mind that employees may not refuse to return to work when recalled. Unless the employee meets specific CARES Act qualifications as an exception, the employer should submit a work refusal form to the Tennessee Department of Labor. More information on refusal to return to work is available at https://www.tn.gov/workforce/covid-19/faq/returntowork.html.
Changes and updates are ongoing, and employers and claimants alike should consult the Tennessee Department of Labor website to stay current.
On September 25, 2020, the U.S. Department of Labor published a Notice of Proposed Rulemaking seeking comments on new regulations that would use a five-factor test to determine who is an employee and who is an independent contractor under the Fair Labor Standards Act. Under the proposed regulations, the issue would be determined by using an inquiry into whether a worker is “economically dependent” on the employer or in business for herself.
The proposed regulations use five factors, but two of those factors are deemed “core factors” that should be given more weight that the remaining three factors. The Department advises that if both of the core factors point in one way, it is unlikely that the remaining three factors, even taken together, would outweigh the combined weight of the core factors. If generally accepted by the federal courts, which currently utilize a range of overlapping and differently interpreted factors to determine independent contractor status, the new regulations will at the very least offer businesses more clarity on this legally fraught area of employment law.
The “core factors” are:
- The nature and degree of the individual’s control over the work – this factor looks at whether the worker exercises substantial control over key aspects of the performance of the work, such setting his/her own schedule, selecting his/her own projects, and ability to work for others. Workers with this kind of control are more likely to be independent contractors. AND
- The individual’s opportunity for profit and loss – this factor looks to whether the worker has an opportunity to earn profits or incur losses based on his/her exercise of initiative or management of his/her investment in or capital expenditure on helpers, equipment or material to further his/her work. If the worker is only able to affect his/her earnings by working more hours or working more efficiently, this factor weighs towards the worker being an employee.
The other three “non-core” factors are:
- The amount of skill required for the work;
- The degree of permanence of the working relationship between the individual and the potential employer; and
- Whether the work is part of an integrated unit of production.
The regulations also state that the actual practice between a worker and a company is more important than what may be contractually or theoretically possible. So, for example, it may be theoretically possible for a worker to negotiate price, but the more relevant inquiry is whether she actually can in practice.
Politics, like virtually everything else these days, will play a major part in whether this regulation goes into effect as written, is substantially modified, or is killed altogether. The comment period ends October 21, 2020, and the Department of Labor hopes to issue the final regulation before President Trump’s term ends on January 20, 2021, which is an usually short period of time to consider a regulation of this import. Moreover, if the Senate flips to Democratic control after the election, the regulation could be invalidated under the Congressional Review Act, which allows the incoming Congress to invalidate a regulation issued in the final 60 working days of the previous Congress.
Look to the Burch, Porter & Johnson employment team to keep you up to date on the latest developments.