COVID-19, FFCRA, and Reopening Schools

On August 27, 2020 the U.S. Department of Labor’s Wage and Hour Division (WHD) published new frequently asked questions for workers and employers about qualifying for paid leave under the Families First Coronavirus Response Act (FFCRA) and the reopening of schools. These FAQs:

  • Explain eligibility for paid leave and the varied formats and schedules schools have announced as they plan to reopen, including blending in-person with distance learning.
  • Explain the benefits and protections available under both the paid sick leave and the expanded family and medical leave provisions of the FFCRA.
  • Address whether employees qualify for paid leave when:
    • A child attends a school operating on an alternate day basis;
    • A parent chooses remote learning when in-person instruction is available; and
    • A school begins the year with remote learning but may shift to in-person instruction if conditions change.

The FFCRA allows certain employees to take up to two weeks of paid sick leave and take up to 12 weeks of expanded family and medical leave, ten of which are paid, for specified reasons related to COVID-19. An eligible employee can take both types of paid leave because of a need to care for the employee’s child whose school or place of care is closed, or whose childcare provider is unavailable, due to COVID-19 related reasons.  

Telework and Work Hours

On August 24, 2020, the U.S. Department of Labor released Field Assistance Bulletin No. 2020-5 to address employers’ obligation under the Fair Labor Standards Act (FLSA) to track teleworking employees compensable work hours.

Although the guidance is specific to the COVID-19 pandemic, it also applies to other telework or remote work arrangements and reaffirms that an employer must pay its employees for all hours worked, including work not requested but allowed and work performed at home.

Additionally, an employer’s obligation to compensate employees for hours worked can be based on their actual or constructive knowledge of that work. For instance, with telework and remote work employees, an employer:

  • Has actual knowledge of the employees’ regularly scheduled hours; and
  • May have actual knowledge of hours worked through employee reports or other notifications.

For overtime, an employer may establish constructive knowledge of their employees’ unscheduled hours by exercising reasonable diligence and establishing a process for employees to report their extra time. If an employee fails to report unscheduled hours through such a procedure, the employer is generally not required to investigate further to uncover unreported hours. However, if an employer is otherwise notified through a reasonable method, or if employees are not properly instructed on using a reporting system, then an employer may be liable for those hours worked.

Form I-9 Compliance Flexibility Extended to September 19

On August 18, 2020, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced another extension to the Employment Eligibility Verification (Form I-9) flexibility rule, which has been extended to September 19, 2020, due to necessary COVID-19 precautions. This flexibility rule, applicable only to remote workplaces, defers the physical presence requirements for in-person verification of identity and employment eligibility documentation for Form I-9. If there are employees physically present at the workplace, then there is no exception for in-person verification.

On March 19, 2020, the DHS first announced that the physical presence requirements were deferred due to COVID-19. Employers are required to monitor the DHS and ICE websites for additional updates regarding when the extensions will be terminated and when normal operations will resume.

Federal Court Stops HHS from Removing Protections for Transgender Patients in ACA

On August 17, 2020, Senior United States District Judge Frederic Block’s decision in Case No. 20-CV-2834 put a temporary stop to the rescission of gender identity protections under Section 1557 of the Affordable Care Act (ACA) that were scheduled to take effect August 20, 2020.

Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in health programs or activities that receive federal financial assistance or are administered by an executive agency or any entity established under Title I of the ACA. In rules from the prior administration (also referred to as the 2016 Rules), Section 1557 protections against sex discrimination included gender identity among the list.

On June 12, 2020, the Department of Health and Human Services (HHS) issued final rules that contained a modification to Section 1557 by removing the protections against discrimination based on gender identity.

However, on June 15, 2020, the U.S. Supreme Court ruled in Bostock that “discrimination based on sex is discrimination based on both sexual orientation and gender identity. Such discrimination has always been prohibited by Title VII’s plain terms, and that should be the end of the analysis.”

In his August 17, 2020 ruling, Judge Block stated that “when the Supreme Court announces a major decision, it seems a sensible thing to pause and reflect on the decision’s impact. It may be a simple thing for the HHS to maybe reconsider its Rule, in light of Bostock, and come out with something that’s simple and that just goes right to the heart of it and eliminates all this obvious confusion that we’re having throughout this country right now about this issue. Since HHS has been unwilling to take that path voluntarily, the Court now imposes it,” by holding that:

  • The HHS’s final rule modifying Section 1557 is contrary to the Supreme Court’s recent holding in Bostock (2020); and
  • The HHS acted arbitrarily and capriciously in enacting the rules.

Subsequently, the definitions of “on the basis of sex,” “gender identity,” and “sex stereotyping” that are currently in the ACA remain effective until a later court order is issued.

ADA and Opioid Abuse

On August 5, 2020, the federal Equal Employment Opportunity Commission (EEOC) released a guidance addressing employees and the use of codeine, oxycodone, and other opioids. This guidance explains the nondiscrimination and reasonable accommodation provisions of the Americans with Disabilities Act (ADA) that are applicable those not engaged in current, illegal drug use and who are qualified for employment. This information is not new policy, instead it applies principles already established in the ADA, clarifies existing legal requirements, and discusses the following:

  • Disqualification from a job for opioid use, legal use of opioids, and drug testing;
  • On the job performance and safety when using opioids, reasonable accommodations, and addiction; and
  • Employee rights and legal process when a violation occurs.

Accommodation Strategies for Returning to Work During the COVID-19 Pandemic

On August 3, 2020, the Job Accommodation Network (JAN) posted a blog with strategies covering the following topics to assist employers in accommodating employees with disabilities and their return to work during the COVID-19 pandemic:

  • General solutions for limiting the risk of exposure to COVID-19;
  • Solutions to address physical distancing needs; and
  • Solutions to address communication needs.

However, JAN reminds employers that in some cases it will be necessary to analyze the individual circumstances to provide customized reasonable accommodation solutions.