As Delaware and surrounding areas reopen workplaces and release new COVID-19 mitigation guidelines for employers, we urge you to consider adopting the following precautionary procedures:
Designate a Pandemic Safety Officer for each active job site or location
The Officer should be on site at any time that work is performed or the location is open, screen employees before beginning work and enforce new COVID safety precautions.
The Officer should take a COVID-19 Awareness Training Course, obtain a COVID-19 workplace training certificate and post it at the job site or location/establishment alongside any other required posters or permits.
The Officer may also be your Site Safety Manager, General Manager, Operations Manager, HR, etc.
Create and communicate a COVID-19 Safety Plan tailored to your company (contact us for more details).
Limit the number of employees at a location or site (consider square footage, client volume, etc.).
Require employees to wear masks at all times while working.
Require social distancing of 6 feet or more between employees while they are working and taking breaks.
Provide every employee with regular access to hand-washing stations, hand sanitizer, and disinfectant wipes.
Schedule regular hand-washing breaks.
Minimize sharing of utensils, computers, tools, equipment, etc. amongst employees.
Have high-touch areas and tools cleaned and disinfected regularly.
For further guidance, join us for our BHI Executive Learning Series webinar on Tuesday, May 12, 2020 entitled “We are returning to work! Now what?” Click here to register. As always, please contact our Insurance, Safety and/or HR Consultants for further questions.
As part of sweeping legislation signed into law by President Trump on March 18, 2020, two laws were enacted that provide workers with paid leave for reasons related to the coronavirus (COVID-19) pandemic. One of the new leave provisions, the “Emergency Family and Medical Leave Expansion Act,” allows 12 weeks of partially compensated FMLA leave to care for a child whose school or child care facility has been closed due to COVID-19. The leave applies only to workers who have been employed by their current employer for 30 days.
The other new law providing employee leave, the “Emergency Paid Sick Leave Act,” requires employers to provide 80 hours of paid sick time to employees in specified circumstances, including:
A quarantine or isolation order for the employee or someone the employee is caring for, or medical advice to self-quarantine;
When the employee has symptoms of COVID-19; or
When the employee’s child’s school or child care facility is closed.
Employers with 500 employees or more are exempt from the laws, and employers may exclude employees who are health care providers and emergency responders. The legislation also allows for future regulations exempting businesses with fewer than 50 employees from providing leave for child care reasons if the leave would jeopardize the viability of the business.
The laws take effect within 15 days of passage; the leave benefits will expire on Dec. 31, 2020. Employers should familiarize themselves with the new leave requirements to ensure compliance.
Overview In response to the coronavirus (COVID-19) pandemic, Congress enacted a bill providing various forms of relief, including two separate laws mandating that employers give employees paid leave for specified purposes related to COVID-19. The two leave laws are the “Emergency Family and Medical Leave Expansion Act,” and the “Emergency Paid Sick Leave Act.” The leave mandates take effect no later than 15 days after passage (April 2, 2020) and sunset on Dec. 31, 2020.
The Emergency Family and Medical Leave Expansion Act In general, the Emergency Family and Medical Leave Expansion Act amends the federal Family and Medical Leave Act (FMLA) to allow employees to take leave for certain child care purposes related to COVID-19. It requires employers to partially compensate that leave after the first 10 days.
Covered Employers The expanded FMLA requirements apply to private employers with fewer than500 employees, and all government employers. Thus, small employers that are not subject to the FMLA’s regular leave provisions are subject to the new FMLA leave rules that allow employees to take leave for specified child care purposes related to COVID-19.
The law allows for future regulations to exempt businesses with fewer than 50 employees if the leave would jeopardize the viability of the business. The law states that employers with fewer than 50 employees will not be subject to civil damages in an employee action brought under the FMLA for violation of the new provisions.
Covered Employees All employees who have worked for their current employer for 30 calendar days are eligible for the new FMLA leave; however, employers are permitted to deny leave to employees who are health care providers or emergency responders.
Using Leave Eligible employees of covered employers may take up to 12 weeks of FMLA leave if they are unable to work (or telework) because they must care for a son or daughter under 18 years of age. The need for leave must be caused by the closing of the child’s elementary or high school or place of care, or the unavailability of the child’s child care provider, due to a declared COVID-19 public health emergency.
“Child care provider” means a provider who receives compensation for providing child care services on a regular basis. Where the need for leave is foreseeable, employees should provide their employers with as much notice of leave as is practicable.
Compensation Employers are not required to pay employees for the first 10 days of the new FMLA leave, but employees may substitute any accrued vacation leave, personal leave, or medical or sick leave for this unpaid leave. Thereafter, the employer must compensate FMLA leave taken under the new provision at a rate of at least two-thirds of the employee’s regular rate of pay, based on the number of hours the employee would otherwise normally be scheduled to work, up to a maximum of $200 per day, or $10,000 total.
Special calculation rules apply for employees with variable schedules. Special rules apply to multi-employer collective bargaining agreements.
Job Protection While FMLA leave is usually job-protected, meaning employees who take leave must be restored to their position (or an equivalent) when they return to work, the new law provides a limited exception to this requirement. Employers with fewer than 25 employees are not subject to the job restoration requirement, if:
The employee took FMLA leave under the new COVID-19 expansion of the law;
The employee’s position no longer exists due to economic conditions or changes in operating conditions of the employer that affect employment and are caused by a public health emergency;
The employer makes reasonable efforts to restore the employee to an equivalent position; and
If these efforts fail, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available. The contact period is for one year, beginning on the earlier of:
The date on which the employee’s need for leave ends
Twelve weeks after the employee’s leave begins
Tax Credit Employers are entitled to a credit against the tax imposed by section 3111(a) or 3221(a) of the IRS Code for each calendar quarter of an amount equal to 100% of qualified sick leave wages paid. Tax credits are also available for self-employed people.
Emergency Paid Sick Leave Act The second law passed providing paid employee leave in relation to the coronavirus is the Emergency Paid Sick Leave Act.
Covered Employers The paid sick leave law applies to all private employers with fewer than 500 employees, and all government employers.
Covered Employees All employees are covered, regardless of the length of their employment with their current employer. However, employers may choose not to provide paid sick leave to employees who are health care providers or emergency responders.
Using Paid Sick Leave All full-time employees, regardless of the length of time they have worked for their employer, are entitled to 80 hours of paid sick time, available for immediate use. Part-time employees are entitled to an amount of paid sick time equal to the average number of hours they work over a two-week period.
Paid sick time may be taken when the employee:
Is subject to a federal, state or local quarantine or isolation order related to COVID-19
Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19
Is experiencing symptoms of COVID-19 and is seeking a medical diagnosis
Is caring for an individual who is subject to a federal, state or local quarantine or isolation order related to COVID-19, or who has been advised by a health care provider to self-quarantine
Is caring for his or her child if the child’s school or place of care has closed, or the child’s care provider is unavailable, because of COVID-19 precautions.
Is experiencing another substantially similar condition specified by the Secretary of Health and Human Services (HHS).
Employers may not require employees to use other paid leave before using paid leave under the new law. The law allows for future regulations exempting businesses with fewer than 50 employees from providing leave for reason 5, above.
An employer may require the employee to follow reasonable notice procedures after taking leave the first time.
Compensation Under the new paid sick leave law, employers must pay employees their regular rate of pay if the employee is taking leave for a reason related to their own symptoms of, or exposure to, COVID-19. Employees who are taking leave to care for family members are only entitled to be paid at two-thirds of their regular rate. Daily and total maximum limits apply, as set forth in the compensation table below.
Reason for leave
Daily pay rate/cap
Total pay cap
Quarantine or isolation order
Regular rate of pay up to a cap of $511
Advice from health care provider to self-quarantine
Experiencing symptoms of COVID-19 and seeking a medical diagnosis
Caring for an individual subject to quarantine or isolation order, or who has been advised by a health care provider to self-quarantine
Two-thirds regular rate of pay, up to a cap of $200
Caring for own child whose school or place of care has closed, or whose care provider is closed or unavailable
Experiencing other substantially similar condition specified by HHS
Special calculation rules apply for part-time employees with variable work schedules.
Employer Notice Requirements The Department of Labor is charged with making a required employer notice available within one week of the law’s passage. Employers must post the notice in conspicuous places on their premises, where notices to employees are customarily posted.
Enforcement Employers who violate the new paid sick leave law will be subject to penalties under the federal Fair Labor Standards Act.
Tax Credit Employers are entitled to a credit against the tax imposed by section 3111(a) or 3221(a) of the IRS Code for each calendar quarter, of an amount equal to 100% of qualified sick leave wages paid. Tax credits are also available for the self-employed.
As the number of reported cases of the novel coronavirus (COVID-19) continues to rise, employers are increasingly confronted with the possibility of an outbreak in the workplace.
Employers are obligated to maintain a safe and healthy work environment for their employees, but are also subject to a number of legal requirements protecting workers. For example, employers must comply with the Occupational Safety and Health Act (OSH Act), Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) in their approach to dealing with COVID-19.
There are a number of steps that employers can take to address the impact of COVID-19 in the workplace. In addition to reviewing the compliance concerns outlined in this Compliance Bulletin, employers should:
• Closely monitor the CDC, WHO and state and local public health department websites for information on the status of the coronavirus. • Proactively educate their employees on what is known about the virus, including its transmission and prevention. • Establish a written communicable illness policy and response plan that covers communicable diseases readily transmitted in the workplace. • Consider measures that can help prevent the spread of illness, such as allowing employees flexible work options like working from home. are enforced.
What is the Coronavirus?
The 2019 novel coronavirus (“COVID-19” or “coronavirus”) is caused by a member of the coronavirus family that is a close cousin to the SARS and MERS viruses that have caused outbreaks in the past. Symptoms of COVID-19 include fever, runny nose, cough and trouble breathing. Most people develop only mild symptoms. But some, usually people with other medical complications, develop more severe symptoms, including pneumonia, which can be fatal. The incubation period for COVID-19 is from two to 14 days. Initially detected in Wuhan, China in late 2019, the first case of COVID-19 in the United States was reported on January 21, 2020. Since then, the disease has spread to more than 50 people within the continental United States, with CDC officials warning of further outbreaks.
How is Coronavirus Spread?
The available information about how the virus that causes COVID-19 spreads is largely based on what is known about similar coronaviruses. COVID-19 is a new disease and there is more to learn about its transmission, the severity of illness it causes, and to what extent it may spread in the United States. According to the CDC, the virus is thought to spread mainly from person to person, between people who are in close contact with one another (within about six feet) or through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land in the mouths or noses of people who are nearby, or possibly be inhaled into the lungs. It may also be possible for a person to contract COVID-19 by touching a surface or object that has been contaminated with the virus and then touching his or her own mouth, nose, or eyes, but this is not thought to be the main way the virus spreads. People are thought to be most contagious when they are most symptomatic. Some spread might be possible before people show symptoms, and there have been reports of this occurring, but this is not thought to be the main way the virus spreads.
Disease Prevention in the Workplace
Whenever a communicable disease outbreak is possible, employers may need to take precautions to keep the disease from spreading through the workplace. It is recommended that employers establish a written policy and response plan that covers communicable diseases readily transmitted in the workplace. Employers can require employees to stay home from work if they have signs or symptoms of a communicable disease that poses a credible threat of transmission in the workplace, or if they have traveled to high-risk geographic areas, such as those with widespread or sustained community transmission of the illness. When possible, employers can consider allowing employees to work remotely. Employers may require employees to provide medical documentation that they can return to work. Employers can consider canceling business travel to affected geographic areas and may request that employees notify them if they are traveling to these areas for personal reasons. Employees who travel to China should be informed that they may be quarantined or otherwise required to stay away from work until they can provide medical documentation that they are free of symptoms. There are several legal considerations that employers should keep in mind when implementing and administering a communicable illness policy. These considerations are addressed in the following sections.
Occupational Safety and Health Act of 1970
Under the federal Occupational Safety and Health Act of 1970 (the OSH Act), employers have a general duty to provide employees with safe workplace conditions that are “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Workers also have the right to receive information and training about workplace hazards, and to exercise their rights as employees without retaliation. There is no specific Occupational Safety and Health Administration (OSHA) standard covering COVID-19. However, some OSHA requirements may apply to preventing occupational exposure to COVID-19. In addition to the General Duty clause, OSHA’s Personal Protective Equipment (PPE) standards and Bloodborne Pathogens standard may apply to certain workplaces, such as those in the healthcare industry.
Employers should continue to monitor the development of COVID-19 and analyze whether employees could be at risk of exposure. It is also important for employers to consider what preventative measures they can take to maintain safety and protect their employees from potentially contracting COVID-19. Also, OSHA requires many employers to record certain work-related injuries and illnesses on their OSHA Form 300 (OSHA Log of Work-Related Injuries and Illnesses). OSHA has determined that COVID-19 is a recordable illness when a worker is infected on the job. Establishments that are required to complete an OSHA 300 log should be sure to include all COVID-19 infections that are work related.
The Americans with Disabilities Act
The Americans with Disabilities Act (“ADA”) protects applicants and employees from disability discrimination. It is relevant to COVID-19 because it prohibits employee disability-related inquiries or medical examinations unless:
• They are job related and consistent with business necessity; or • The employer has a reasonable belief that the employee poses a direct threat to the health or safety of him-or herself or others (i.e., a significant risk of substantial harm even with reasonable accommodation).
According to the Equal Employment Opportunity Commission (EEOC), whether a particular outbreak rises to the level of a “direct threat” depends on the severity of the illness. Employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.
The EEOC has said that sending an employee home who displays symptoms of contagious illness would not violate the ADA’s restrictions on disability-related actions because advising such workers to go home is not a disability-related action if the illness ends up being mild, such as a seasonal influenza. On the other hand, if the illness were serious enough, the action would be permitted under the ADA as the illness would pose a “direct threat.” In either case, an employer may send employees home, or allow employees to work from home, if they are displaying symptoms of contagious illness.
The ADA requires that information about the medical condition or history of an employee, obtained through disability-related inquiries or medical examination, be collected and maintained on separate forms and in separate medical files and treated as a confidential medical record. Employers should refrain from announcing to employees that a coworker is at risk of or actually has a disease. Instead, employers should focus on educating employees on best practices for illness prevention.
Employee Leave Requirements
If an employee, or an employee’s family member, contracts COVID-19, the employee may be entitled to time off from work under federal or state leave laws. For example, an employee who is experiencing a serious health condition or who requires time to care for a family member with such a condition may be entitled to take leave under the Family and Medical Leave Act (FMLA). An illness like COVID-19 may qualify as a serious health condition under the FMLA if it involves inpatient care or continuing treatment by a health care provider. Employees may also be entitled to FMLA leave when taking time off for medical examinations to determine whether a serious health condition exists.
Many states and localities also have employee leave laws that could apply in a situation where the employee or family member contracts COVID-19. Some of these laws require employees to be given paid time off, while other laws require unpaid leave. Employers should become familiar with the laws in their jurisdiction to ensure that they are compliant.
Some employees may wish to stay home from work out of fear of becoming ill. Whether employers must accommodate these requests will depend on whether there is evidence that the employee may be at risk of contracting the disease. A refusal to work may violate an employer’s attendance policy, but employers should consult with legal counsel prior to disciplining such an employee. However, if there is no reasonable basis to believe that the employee will be exposed to the illness at work, the employee may not have to be paid for any time that is missed.
Compensation and Benefits
If employees miss work due to COVID-19, whether they are compensated for their time off will depend on the circumstances. As noted above, employees may be entitled to paid time off under certain state laws if they (or a family member) contract the illness. In other cases, non-exempt employees generally do not have to be paid for time they are not working. Exempt employees must be paid if they work for part of a workweek, but do not have to be paid if they are off work for the entire week. Note that special rules may apply to union employees, depending on the terms of their collective bargaining agreement.
Employees may be entitled to workers’ compensation benefits if they contract the disease during the course of their employment. For example, employees in the healthcare industry may contract the disease from a patient who is ill. Whether an employee is eligible for other benefits, such as short-term disability benefits, will depend on the terms of the policy and the severity of the employee’s illness.
Communicating with Employees
As part of their efforts to prevent the spread of COVID-19 in the workplace, employers should consider communicating information about the illness to employees. The CDC, WHO and OSHA have all created informational material on the virus and its symptoms, prevention and treatment that can be helpful for employees.
The illness caused by the coronavirus can cause symptoms ranging from mild to severe. Cases are expected to spread throughout the United States.
Employers must maintain a safe work environment for employees. They may require employees to stay home from work if they are at risk of spreading the disease.
Employers must also consider their obligations under workplace laws.
Business owners have so much on their plate these days, and many times the last thing on their mind is insurance. As a business owner, what do you think about when someone says the word “insurance”? Does it bore you? Do you roll your eyes? When was the last time you reviewed your insurance portfolio? Even the word itself has a bit of an outdated and traditional undertone. We get it, and we’re doing everything we can to change the market and our client and prospects’ antiquated outlook on “insurance.” We believe it’s one of the most important pieces to put in place for business continuity and not worthless paper stacked on a shelf that you hope you never have to use!
Let’s take this one step further as it’s not just about proper insurance coverage for your business. It’s about mitigating all types of risks that involve your employees, clients, and third parties. Insurance should be part of a much greater risk management approach that considers safety, human resources, and health and wellness practices – all important things in a successful business, and cost-savers if implemented strategically.
At BHI, we have set out to do insurance differently than your traditional broker. We aim to be more like your Insurance Consultant, rather than just your broker. We are comprised of industry specialists in Property & Casualty (P&C) insurance, benefits, human resources and safety with a common love for doing good business. We believe that having proper insurance policies and risk mitigation strategies in place is the foundation to doing good business.
Think about it like this – if we make an error or fail to include an important coverage in your portfolio, you can lose your whole business. Imagine the worst thing that can happen to your business – a fire, a cyber attack, an accident resulting in fatalities – are you covered in these scenarios? We are here to tell you from experience that these types of things DO happen, so it’s important to review your coverage regularly and choose a broker who isn’t just your broker, but a consultant to your business.
We operate by the following mission: BHI is the opposite of a traditional insurance brokerage, offering not only Commercial and Personal Insurance, but also Benefits, and Safety/Risk Control and HR Consulting.
Instead of sitting back and waiting for policies to renew, we proactively mitigate risk, share knowledge, and employ creative strategies to stay at the forefront of ever-changing client needs. We work harder and smarter than our competitors, tackling challenges with tenacious persistence and endless drive. In our industry, people accept subpar service—we’re here so they don’t have to.
ABOUT THE AUTHOR
John joined BHI in 2006 as a part-time advisor, became a partner in 2010 and President/CEO in 2016. His primary role is that of an insurance advisor, working with industry leaders to implement insurance and risk management strategies that are a best fit for each client. In addition to John’s role as an advisor, he oversees all financial and strategic initiatives for BHI. He has experience dealing with multiple insurance strategies, including guaranteed cost, loss sensitive and captive insurance programs, for organizations and businesses across most industries. John is licensed to sell insurance in 43 states and to date, has sold over $100,000,000 in Property & Casualty Insurance premiums.
Most recently, John has been honored by Delaware Business Times as one of their 40 Under 40 Leaders. DBT presents this award to “role models who are striving to make a difference in our community.” Under John’s leadership, BHI was also named a Fastest 50 award winner, signaling BHI’s growth and placement as a premier brokerage in the Mid- Atlantic region.
A lifelong Delawarean, John resides in Hockessin with his two children, Jack and Bailey.
This article is featured on Delaware Business Times – BIZINSIGHTS. For full access, click here.
Our Executive Learning Series is back! Monthly, our Human Resources department hosts an informative discussion on common Human Resources topics complete with a complimentary lunch. This is a chance to meet individuals from other companies in our community and to learn about many workplace topics. We hope to see you there!
Our Human Resource Consultants are here to help you with your next big HR project, whether it’s an employee handbook, full HR audit, training, or assistance with a disciplinary issue, termination, hiring and onboarding, or developing new processes. Check out a list of all they do!
Sexual harassment is a serious problem in the workplace and unfortunately, has been for years. Times are certainly changing as now five states in the U.S. have mandated that companies conduct sexual harassment training – California, New York, Maine, Connecticut and Delaware. Regardless of a training requirement, many companies can easily fall into the “not us” trap of complacency. This mindset leads managers and leaders to overlook claims or not investigate them properly, and employees to not report them all. Read More
Thoughts from a DE HR professional about the changing regulations, policies, and legislation affecting our workplace and most valuable assets – our human resources.
I think I say it daily to clients, coworkers, friends and family — “we live in interesting times today.” An understatement, for sure. But how did we get here? How did we get to a time where sexual harassment training is now mandated by state law? Have we simply swept this lack of education, self and social awareness, and disregard for such an obvious standard of workplace dignity under the rug for so long that it has now come to this? You bet we did. But there’s so much more to this subject that I’d like to address. Read More