- On April 9, 2020
By: Paula E. Pitrak
Within the first two weeks of the Families First Coronavirus Response Act (FFCRA) being in effect, certain federal agencies published temporary or interim final rules regarding sick leave and expanded family and medical leave or railroad unemployment and sickness benefits, while others continued to publish and revise their guidance on navigating the coronavirus pandemic.
Department of Labor
Wage and Hour Division
On April 6, 2020, Department of Labor’s Wage and Hour Division (WHD) published a Temporary Rule—effective April 2, 2020— to implement public health emergency leave under Title I of the Family and Medical Leave Act (FMLA), and emergency paid sick leave to assist working families facing public health emergencies arising out of Coronavirus Disease 2019 (COVID-19) global pandemic. The temporary regulations appear in new Part 826 of Title 29 of the Code of Federal Regulations and discuss a wide variety of topics—including return to work, record keeping, health care coverage, documentation of need for leave, employee notice of need for leave, and other aspects of the FFCRA. The WDH has also posted a webinar, The Families First Coronavirus Response Act (FFCRA), and made available the webinar slides outlining and explaining sick leave and expanded family and medical leave related to COVID-19 under the FFCRA.
Signaling strong enforcement efforts to assure work-related benefits and rights related to COVID-19 paid sick leave and expanded family and medical law, the Wage and Hour Division (WHD) published a news release U.S. Department of Labor’s Wage and Hour Division Announces Job Openings announcing the hiring of 45 additional investigators to conduct investigations to determine employers’ compliance with applicable federal labor laws.
Occupational Safety and Health Administration
OSHA has issued Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19)–explaining that COVID-19 is a recordable illness; that employers are responsible for recording cases of COVID-19 in certain cases; and that OSHA will not enforce its recordkeeping requirements to require these employers to make work-relatedness determinations for COVID-19 cases, except where: (1) There is objective evidence that a COVID-19 case may be work-related; and (2) The evidence was reasonably available to the employer.
The Department of Labor also put forth a News Release announcing that the Occupational Safety and Health Administration (OSHA) issued a new poster Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus (available in English and Spanish) aimed at reducing workplace exposure to coronavirus and highlighting 10 infection prevention measures every employer can implement to protect workers’ safety and health. The Department has also issued new release: U.S. Department of Labor Reminds Employers That They Cannot Retaliate, reminding employers that it is illegal to retaliate against workers because they report unsafe and unhealthful working conditions during the coronavirus pandemic. Acts of retaliation can include terminations, demotions, denials of overtime or promotion, or reductions in pay or hours.
In addition OSHA’s COVID-19 webpage continues to update its available resources—which include Guidance on Preparing Workplaces for COVID-19 and Worker Exposure Risk to COVID-19 (available in English and Spanish).
Employers should consider whether their efforts meet these guidelines.
Railroad Retirement Board
On April 7, 2020, the Railroad Retirement Board (RRB) published an Interim Final Rule—effective April 3, 2020—amending the definition of “available for work” in its regulations in order to facilitate payment of unemployment benefits to railroad employees who are out of work due to the impact of the COVID-19 outbreak and subsequent declaration of a national emergency. The RRB amended title 20, chapter II, subchapter C, part 327 of the Code of Federal Regulations by adding paragraph (d) of Section 327.5 to read as follows:
(d) Deemed available for work. During the period extending from March 1, 2020 until December 31, 2020, a claimant will be deemed to be available for work during any period for which he or she is subject to a state or local order related to the public health emergency declared effective March 1, 2020 preventing him or her from reporting to work.
The RRB also revised its Q&E Unemployment and Sickness Benefit Flexibilities Under the Railroad Unemployment Insurance Act (RUIA) during the COVID-19 Virus Outbreak, addressing questions regarding those situations in which benefits are payable during the COVID-19 outbreak.
Centers for Disease Control and Prevention
The Centers for Disease Control and Prevention’s (CDC) COVID-19 webpage continues to update its guidance and standards, and it recently issued railroad-specific fact sheets, What Rail Transit Operators Need to Know About COVID-19 and What Transit Maintenance Workers Need to Know About COVID-19, setting forth helpful guidance on the transit vehicle surfaces that should be cleaned, the best cleaning chemicals, and recommended steps for employers.
Department of Transportation
Federal Railroad Administration
The FRA issued Safety Advisory 2020-01: Safety Precautions Related to Coronavirus Disease 2019 (COVID-19), encouraging railroads, their employees, and contractors to review and follow all applicable guidance available related to COVID–19, including the best practices identified in the President’s Coronavirus Guidelines for America—30 Days to Slow the Spread of Coronavirus (COVID–19), the Centers for Disease Control and Prevention’s (CDC) COVID–19 guidelines, and the Occupational Safety and Health Administration’s (OSHA) Guidance on Preparing Workplaces for COVID–19.
On April 10, 2020, the FRA issued its Reply Letter to the joint request of the Association of American Railroads, the American Short Line and Regional Railroad Association, and the American Public Transportation Association for temporary emergency relief from Title 49 Code of Federal Regulations (CFR) §240.127, Criteria for Examining Skill Performance, due to the public health emergency concerning the coronavirus disease 2019 (COVID-19). The FRA granted temporary relief from the requirements of § 240.127(c)(5), and will permit railroads to use event recorders to conduct the skill performance examination of candidates for recertification under Part 240. Relief is limited to the method of conducting the skill performance examination in paragraph (c)(5) of § 240.127 and is subject to certain limitations.
Internal Revenue Service
The Internal Revenue Service (IRS) has established its Coronavirus Tax Relief page to help taxpayers, businesses and others affected by the coronavirus. In addition to news releases, statements, answers to frequently asked questions, and guidance notices, the IRS released Form 7200 and Instructions for Form 7200 for advance payment of employer credits due to COVID-19 related sick or family leave under the FFCRA.
In its publication Notice 2020-21, Effective Date for Employment Tax Credits Under the Families First Coronavirus Response Act, the IRS explained the FFCRA’s refundable tax credits for employers of qualified sick leave wages and qualified family leave wages will apply for the period beginning on April 1, 2020 and ending on December 31, 2020.
Additionally, in its Press Release: Treasury and IRS Release FAQs to Help Small and Midsize Businesses Navigate Paid and Sick Family Leave Tax Credits, the Department of Treasury announced the COVID-19-Related Tax Credits for Required Paid Leave Provided by Small and Midsize Businesses FAQs that offer additional information on refundable tax credits under FFCRA.
Equal Employment Opportunity Commission
The Equal Employment Opportunity Commission (EEOC) also has a dedicated Coronavirus and COVID-19 page to consolidate relevant information to answer questions from the public about the EEO laws and COVID-19, and it posted a pre-recorded webinar addressing specific questions related to the pandemic—which it made available at the following links: YouTube Webinar, COVID-19 “Ask the EEOC” and Transcript of March 27, 2020 Outreach Webinar. The EEOC continues to revise its guidance in Pandemic Preparedness in the Workplace and the Americans with Disabilities Act for information about the ADA and pandemic planning in the workplace.
For more information regarding your company’s compliance with the FFCRA, the CARES Act, and other applicable federal, state, and local employment laws regarding COVID-19, contact Fletcher & Sippel’s Labor & Employment Group.