Published on: Mon 16th Mar, 2020 By: Campbell Durrant, P.C.
I. THE GOVERNOR’S RESPONSE TO COVID-19
Pennsylvania Governor, Tom Wolf, has ordered all non-life-sustaining businesses to close their physical locations as of 8:00 p.m. on Thursday, March 19, 2020 in order to slow the spread of COVID-19. The Governor’s Order can be found here. Enforcement actions against businesses that fail to close began Monday, March 23, at 8:00 am. There is currently no end date for this mandatory closure. The list of life-sustaining businesses that may keep their physical presence open can be found here. Local governments are not covered by this mandatory closure, as discussed more below.
On March 23, 2020 beginning at 8:00 pm, the Governor issued a mandatory stay at home order for individuals living in ten (10) counties: Allegheny County, Bucks County, Chester County, Delaware County, Erie County, Lehigh County, Monroe County, Montgomery County, Northampton County, and Philadelphia County. All individuals in these counties must stay at home except to conduct certain essential activities and for work at a life-sustaining business or government agency. The Governor’s stay at home order can be found here.
The Governor also previously required restaurants and bars to stop all dine-in services. Enforcement for establishments with a liquor license began at 8 p.m. March 18, 2020 and enforcement for all other food establishments began at 8 p.m. March 19. Food establishments can offer carry-out, delivery, and drive-through food and beverage service, including alcohol.
On March 23, 2020, the Governor ordered all K-12 public schools to remain closed until Monday, April 6, 2020. K-12 public schools were initially ordered to close beginning Monday, March 16, 2020.
II. PENNSYLVANIA SUPREME COURT UPHOLDS MANDATORY CLOSURES
In an order issued late on Sunday, March 22, 2020 a divided Pennsylvania Supreme Court dismissed an emergency legal challenge to Governor Wolf’s statewide order closing all non-life-sustaining businesses, brought by a Bucks County gun buyer and a Lancaster County gun store owner, who argued that the Governor’s mandatory business closure order violated their Second Amendment right to bear arms, because gun stores were not deemed “life-sustaining” businesses.
The Supreme Court did not explain its decision in its two-page order. While the Justices expressed concern over the indefinite nature of the mandatory closure, they did not modify the Governor’s Order. This decision clears the way for enforcement of the Governor’s enforcement efforts.
III. CONGRESS APPROVES FAMILIES FIRST CORONAVIRUS RESPONSE ACT
The Families First Coronavirus Response Act (FFCRA) is part of Congress’ comprehensive legislative response to the economic and public health crisis caused by COVID-19. The FFCRA includes a number of changes to public assistance programs, unemployment compensation benefits administration, as well as mandates for certain paid leave related to coronavirus-related work absences. Click here for a summary of the FFRCA focusing on the employment provisions impacting public and private employers.
Of particular importance to public employers, please be aware that the emergency Family and Medical Leave Expansion Act (“Expansion Act”) applies to all governmental employers regardless of size and, with some exceptions, to private employers with less than 500 employees. An explanation of this important change can be found here. The FFCRA also enacted the Emergency Paid Sick Leave Act (the “EPSLA”). The EPSLA references the Fair Labor Standards Act’s definition of a “public agency,” and also thus specifically applies to local government employers.
IV. REQUESTING EMPLOYEE HEALTH INFORMATION
A. How much information may employers request from employees who report feeling ill at work or who call in sick, and can employers take employees’ temperatures?
Employers may ask employees if they are experiencing influenza-like symptoms, such as fever or chills, a cough, or sore throat, during this outbreak. Employers must maintain all information about employee illness as a confidential medical record in compliance with the Americans with Disabilities Act (“ADA”). Because the scale of the COVID-19 pandemic in Pennsylvania, it is likely now permissible to measure employees’ body temperature, based on U.S. Equal Employment Opportunity Commission (“EEOC”) pandemic guidance, although employers should consult legal counsel and be aware that some people with COVID-19 do not present with a fever. Moreover, if an employer takes temperatures of its employees it must do so consistently and in a manner that protects the employees’ privacy.
B. May employers ask asymptomatic employees to disclose whether they have a medical condition that CDC says would make them vulnerable to COVID-19 complications?
Making disability-related inquiries or requiring medical examinations of employees without symptoms is generally prohibited by the ADA. However, the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions such that employers likely have sufficient objective information to reasonably conclude that employees will face a direct threat if they contract COVID-19. In fact, the EEOC has recognized in its March 21, 2020 update to the Pandemic Preparedness in the Workplace and The Americans with Disabilities Act guidance the COVID-19 pandemic meets the direct threat standard. In light of this, we have likely reached a point where employers may do so, but employers should only do it in this limited circumstance in order to identify those at higher risk of COVID-19 complications and it is paramount that an employer maintain the confidentiality of any information disclosed to it relating to employees’ medical conditions.
C. May an employer ask an employee why he or she has been absent from work?
Yes, asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.
D. May employers require employees who have been away from the workplace to provide a doctor’s note certifying fitness to return to work?
Yes, employers may require fitness for duty certifications during the COVID-19 pandemic. As a practical matter, however, employers may need to be flexible because doctors and other health care professionals may be too busy to provide fitness-for-duty documentation, given the current influx of COVID-19 patients. Flexibility may include relying on return to work slips, e-mails, or stamps from local health clinics certifying that the employee does not have COVID-19.
E. Do employees have return to work rights?
Under the FMLA, employees generally have the right to return to work, usually to the same or an equivalent position. The FFCRA, specifically the Expansion Act, materially alters the ordinary answer to this question for leave taken under the Expansion Act. Under the Expansion Act, there are different rules regarding restoration to a position following an employee’s use of qualifying leave related to a public health emergency than would normally apply under the FMLA.
Under the Expansion Act, employers who employ fewer than 25 employees can deny an employee restoration to an equivalent position if: (1) the employee took public health emergency leave; (2) the position they held prior to the leave “does not exist due to economic conditions or other changes in operating conditions of the employer” that affect employment and are caused by “a public health crisis” during their leave; (3) the employer makes “reasonable efforts” to restore an equivalent position (but is unable to do so); and, (4) the employer makes “reasonable efforts” to contact the employee if an equivalent position becomes available during a 1-year period measured from the earlier of the date on which the qualifying need related to a public health emergency concludes, or the date that is 12 weeks after the date on which the employee’s public health emergency leave begins. We are still awaiting guidance from the Department of Labor in regard to these standards and the question of whether a public employer would be able to meet the standards for denial of employee restoration remains unanswered, so we recommend working with labor counsel and proceeding with caution until further clarification is provided.
Depending on the type of FMLA leave, an employer may require a fitness-for-duty certification, as discussed above, but the employer must uniformly apply that policy and advise the employee of the requirement in the FMLA Employer Designation form. It will be important to review return to work questions with labor counsel to ensure the proper provisions are applied.
V. EMPLOYEE TRAVEL
A. If an employee returns from travel, can the employer ask questions about exposure to COVID-19?
Yes. If the CDC or state or local public health officials recommend that people who visit specific locations remain at home until it is clear that they do not have COVID-19, an employer may ask whether employees are returning from these locations, even if the travel was personal, and such questions are not considered disability related inquiries. Currently, the CDC recommends that individuals who have traveled to countries designated as Level 3 outbreaks (widespread, ongoing transmission) self-quarantine for fourteen (14) days after returning to the U.S. At this time, the list of Level 3 countries continues to grow. The most current information from the CDC can be found here. Employers can require employees who have traveled to a Level 3 country to remain home for the recommended fourteen (14) day isolation period.
B. Can employers restrict employee from personal travel to outbreak regions?
No. Employers cannot restrict employee personal travel, and may violate the ADA’s prohibition against association discrimination if an employer discriminates against employees with family in COVID-19 outbreak regions. Employers can request that employees traveling to outbreak regions notify the employer about such travel, and they can monitor employees returning from outbreak regions (even if they are not designated by CDC as Level 3 countries) for signs or symptoms of infection. Finally, as discussed above, employers can require employees to remain home from work for an isolation period, if the employees has traveled to a Level 3 country.
VI. WORK ORGANIZATION AND SCHEDULING
A. Which employees should continue to work while COVID-19 cases continue to rise in Pennsylvania?
Each employer, including local governments, will need to determine how to handle staffing during this extraordinary time. As discussed above, Governor Wolf has ordered all non-life-sustaining businesses (this order does not include local government agencies) to close their physical locations as of 8:00 p.m. on Thursday, March 19, 2020 in order to slow the spread of COVID-19. The list of life-sustaining business that may keep their physical presence open can be found here. Enforcement began on Monday, March 23, 2020 at 8:00 am. There is not currently an end date for this mandatory closure, but it does not prohibit employers from continuing operations as long as their employees are working remotely.
Local governments on the other hand are not required to suspend all in-person operations, according to FAQs issued by the Department of Community and Economic Development (“DCED”). According to DCED, local governments should curtail in-person operations to the extent practicable and follow COVID-19 mitigation guidance provided by the Department of Health and the CDC. Some municipalities have and will choose to provide only “essential services” during this temporary and extraordinary period.
B. Related Questions to Consider For Local Government Employers.
Some of the emerging employment questions these municipalities will face are:
a. Can an employee refuse to come to work for fear of contracting COVID-19, even if they are not presently ill?
Answer: Generally, no, but the EPSLA provides that an employer “shall provide each employee” with paid sick time “to the extent that the employee is unable to work (or telework) due to a need for leave because of six (6) different reasons, and reason (2) is when the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. So, if the employee’s fear is based on advice from a health care provider that they should self-quarantine as opposed to a general fear of contracting COVID-19, the employer may be obligated to provide the employee with paid sick time.
b. Will a temporary furlough be implemented for employees who do not perform essential services and whose position does not allow for remote work?
Answer: Unfortunately, there is no one-size fits all answer to this question. There are numerous considerations that must be weighed and balanced when deciding whether to implement a temporary furlough. Before making the decision to furlough employees, be certain to review any labor agreement which might apply to the employee(s), consider impact bargaining obligations, and contact labor counsel.
c. If an Employee Handbook or collective bargaining provision makes paid sick leave available to employees, is an employer still required to make emergency paid sick leave available to its employees pursuant to EPSLA?
Answer: Yes. The emergency paid sick leave available to employees under the EPSLA is in addition to any paid leave already provided by an employer. In other words, an employee is entitled to sick leave under the EPSLA without first exhausting any paid leave benefit offered by their employer and the paid leave entitlement should not be used to diminish an employee’s sick leave bank
As mentioned previously, both the EPSLA and the Expansion Act dramatically change an employer’s obligation to provide leave during the COVID-19 pandemic. For a full review of the FFRCA click here and for a review of the Expansion Act click here.
d. Will an employer’s unemployment compensation (“UC”) tax rate increase if its employees file for benefits?
Answer: According to the Pennsylvania Department of Labor & Industry, the answer is “no.” Contributory businesses who are temporarily closed due to COVID-19 will be granted Relief From Charges and their tax rate will not be increased because of COVID-19-related claims.
e. Have any UC rules changed as a result of Governor Wolf’s emergency declaration regarding COVID-19?
Answer: Work Search and Work Registration requirements are temporarily suspended for all UC claimants. Claimants are neither required to prove they have applied or searched for a new job to maintain their UC benefits and nor are they required to register with PACareerLink.pa.gov.
The Waiting Week is also temporarily suspended for all UC claimants. Eligible claimants may now receive benefits for the first week that they are unemployed rather than having to wait for a week.
f. Can an employer with a unionized workforce unilaterally adopt changes in schedules or layoffs/furloughs?
Answer: It depends. Each collective bargaining agreement needs to be examined before answering this question definitively, but the law recognizes a “compelling economic exigency” exception, allowing employer action for unforeseen extraordinary events requiring immediate action.
g. What are the risks of a discrimination claim and what steps can be taken to mitigate that risk?
Answer: All employment discrimination and civil rights statutes, including Title VII of the Rights Act of 1964, remain fully in effect, including those provisions prohibiting discrimination on the basis of race and national origin. Employers should be mindful not only of how they treat individual employees but also how facially neutral policies might have a detrimental impact on employees in protected classes.
Municipalities should consult with their legal counsel to address these emerging questions. The answers will be highly fact-specific and depend on your specific operational needs and accrued leave/paid leave and unpaid leave policies, in conjunction with application of federal, state and local law.
VII. INFECTION CONTROL PRACTICES
A. If an employee is confirmed to have COVID-19, should the employer notify other employees?
Yes, the CDC recommends that the employer should inform employees of the possible exposure, but maintain confidentiality around the identity of the employee consistent with the ADA.
B. May employers require employees to adopt infection-control practices, such as regular hand washing in the workplace, and do employers have an obligation to address hazards associated with COVID-19?
Employers may require infection control practices, such as regular hand washing and coughing and sneezing etiquette. Staggering shifts is also recommended in order to create physical distance between employees. The CDC and WHO recommend strategies involving enhanced workplace hygiene, environmental cleaning, and employee education. See: CDC’s Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease; Environmental Cleaning and Disinfection Recommendations: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html.
Although local governments are not regulated by OSHA, OSHA regulated employers are required to furnish workers with “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” OSHA has issued guidance that employers should adopt infection control strategies based on a thorough hazard assessment, using appropriate combinations of engineering and administrative controls, safe work practices, and personal protective equipment to prevent worker exposures.
VI. CHANGES TO FAMILY AND MEDICAL LEAVE ACT (FMLA)
A. Are there new reasons for FMLA qualifying leave?
Yes, the Expansion Act amends Section 102(a)(1) of the FMLA – the section governing the reasons for taking FMLA leave – by adding a new subparagraph F that provides for leave “because of a qualifying need related to a public health emergency.” This special provision for qualifying need related to a public health emergency leave under the FMLA has an automatic sunset date of December 31, 2020, so it is not intended as a permanent revision to the FMLA.
B. Have the definitions of eligible employee and eligible employer changed?
Yes, the Expansion Act contains new definitions that apply only to qualifying need related to a public health emergency leave. An “eligible employee” for this leave is “an individual who has been employed for at least 30 days by the employer (dispensing with the FMLA’s requirement that the employee have worked for the minimum of 1,250 hours in the preceding year). The definition of “employer” to which this type of leave applies includes all local governments and private employers with “fewer than 500 employees.” The requirement that an employer have “50 or more employees” which must be present in order for FMLA leave to apply to an employer for other types of FMLA leave does not apply for this type of leave.
C. Does caring for children whose school has closed qualify for FMLA leave?
Yes, caring for children whose school has closed due to COVID-19 now qualifies for FMLA leave. A “qualifying need related to a public health emergency” under the Expansion Act the FMLA is triggered when “the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider is unavailable, due to a public health emergency.” The “child care provider” must be someone who receives compensation for the child care on a regular basis. The term public health emergency specifically means “an emergency with respect to COVID-19 as declared by a Federal, state or local authority.”
D. If an employee is home with a child because his or her school or place of care is closed, or a child care provider is unavailable, does the employee get paid sick leave, expanded FMLA leave, or both?
An employee may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. An employee may take both paid sick leave and expanded FMLA leave to care for their child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. The EPSLA provides for an initial two weeks of paid leave. This period covers the first ten (10) workdays of expanded FMLA leave, which are otherwise unpaid under the Expansion Act unless the employee elects to use existing vacation, personal, or medical or sick leave under the employer’s policy. After the first ten workdays have elapsed, an employee will receive 2/3 of their regular rate of pay (subject to certain dollar value caps) for the hours they would have been scheduled to work in the subsequent ten weeks under the Expansion Act.
F. Are “emergency responders” excluded from coverage under these changes?
Yes, the Expansion Act authorizes the Secretary of Labor to issue regulations “for good cause” to exclude “certain health care providers and emergency responders from the definition of ‘eligible employee,’” and to exempt “small businesses with less than 50 employees” from the Expansion Act’s requirements “when the imposition of such requirements would jeopardize the business as a going concern.” Section 3105 of the Act also allows employers to exclude from coverage employees who are a “health care provider or emergency responder” from coverage under the Expansion Act. This exclusion is at the employer’s election, so it would appear that employers can choose to include or exclude emergency responders from qualifying need related to a public health emergency leave. Unfortunately, there is currently no guidance from the Department of Labor which defines which positions or categories of jobs qualify as an “emergency responder” for purposes of this exemption.
VII. The Sunshine Act and Public Meetings
A. Are we still required to comply with the Sunshine Act’s opening meetings requirements?
Yes. The Pennsylvania Office of Open Records (“OOR”) has taken the position that the Sunshine Act still applies. OOR has advised that if an official emergency declaration prevents in person public participation, a meeting via teleconference, webinar, or other electronic method that allows for two-way communication is permissible in most circumstances.
However, it is important to note that an agency taking that step must provide a reasonably accessible method for the public to participate and comment pursuant to Section 710.1 of the Sunshine Act. That method should be clearly explained to the public in advance of and during the meeting.
35 Pa.C.S. 7501(d) allows agencies under a “declaration of disaster emergency” to suspend the need to comply with certain laws and requirements. In context, any such suspensions must be related to the emergency. https://openrecordspennsylvania.com/2020/03/11/the-sunshine-act-and-covid-19/
B. Do elected officials need to be physically present to meet quorum requirements?
It depends. If a municipal employer is exploring alternate meeting arrangements, review applicable enabling legislation or other governing documents, such as an inter-municipal agreement, to make sure that all quorum requirements are satisfied. One such issue, for example, is whether governing officials need to be physically present at a meeting in order to meet quorum requirements and/or to cast a vote. Generally, however, as long as there is two-way communication, officials do not need to be physically present at a meeting in order to satisfy quorum requirements and/or to cast votes.
THE BOTTOM LINE
The attorneys at Campbell Durrant, P.C. remain ready and able to assistant local governments and other employers as they navigate this extraordinary situation. Informed, strategic decisions can not only ensure legal compliance and mitigate litigation risk, but help employers prevent the spread of this potentially deadly global pandemic in the work place. During these uncertain times, our team remains committed to working with our clients to ensure the health and safety of their workforce and the public they serve.
The information provided in this document does not, and is not intended to, constitute legal advice; instead, all information, content, and materials provided here are for general informational purposes only. Information in this document may not constitute the most up-to-date legal or other information. No reader of this document should act or refrain from acting on the basis of information provided here without first seeking legal advice from counsel.