COVID-19 Employer Playbook

Employer Notices and Procedures An employer must post a notice for employees about the requirements of the law. (For a little levity, it is a bit amusing that the law requires that the notice be “posted in conspicuous places on the premises of the employer” in the midst of so many Shelter-in-Place orders wherein a significant percentage of employees are actually working from home.)

The DOL has provided a model notice . Vita has also provided a model notice .

No Requirement to Find Replacement Worker An employer may not require an employee to find or search for a replacement to cover the hours the employee will be away due to sick time. Must OT be Included in Pay? Regularly scheduled overtime pay must be included. (Although not specifically stated, we are presuming that ad hoc overtime pay does not need to be.) However, paid sick time need only be paid up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick time in the first week and 30 hours of paid sick time in the second week. The total number of hours paid is capped at 80. Small Employer Exemption Small employers (under 50 employees) may be eligible for an exemption from the paid sick time mandate on the basis that doing so would jeopardize the viability of the business as a going concern. The DOL will establish a process for employers to apply for an exemption. To qualify, an authorized officer of the business would need to certify meeting any of the following criteria: • Providing leave would cause the business’s expenses and financial obligations to exceed available revenues and the business to cease operating at a minimal capacity. • The absences would create a substantial risk to the financial health or operational capabilities of the business. • The employer would not be able to operate at a minimal capacity because it would have insufficient workers to perform the labor or services provided by the absent employees. Healthcare Provider Exemption Employers of healthcare providers may exempt certain employees from COVID-19 paid sick time and thus opt-out of providing this benefit. The DOL has provided a detailed definition of the types of entities that qualify as healthcare providers and whose employees may be that may be exempted. The list is exhaustive and includes just about every type of healthcare provider one could think of. 500 Employee Threshold Calculation Questions have been asked regarding how the 500-employee threshold is measured for the law. Question #2 of the DOL Employer Fact Sheet clarifies that the measurement of the 500 employees is as of the time the employee's sick time is taken. Therefore, it should be considered a “rolling 500” not a “point in time 500” as of the effective date of the law (April 1st). So, if an employer dips below or inches above the threshold, the availability of COVID- 19 paid sick time for employees might change. The availability of employer tax credits pursuant to those paid sick time benefits would follow suit.

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