As with all cases, when an employee comes to work with a fever or difficulty in breathing, this indicates that they should seek a medical evaluation. This does not necessarily mean that the employee has COVID-19. Please keep in mind and train supervisors on the importance of not overreacting to situations in the workplace. Remember that you already have protocols in place regarding health and safety of employees.
FAQs on the COVID-19 Coronavirus
WORKPLACE SAFTEY ISSUES
Yes, you can ask employees to seek medical attention and get tested for COVID-19 and you can ask them to leave work until such time their medical provider provides a clearance to work.
This is an area subject to interpretation on workplace needs. Both the Americans with Disability Act (ADA) and the Equal Employment Opportunity Commission (EEOC) consider taking an employee’s temperature to be a “medical examination”. The ADA prohibits employers from requiring medical examinations and making disability-related inquires unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity; or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health and safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.
This may be considered unlawful, if it is not job-related. Remember that employees may be infected with the COVID-19 virus without the typical symptoms of a fever. In addition, having a fever may not be indicative of COVID-19 virus.
If you introduce new chemicals into the workplace, remember your OSHA Hazard Communications Standards. You are required to provide employees with effective information and training upon initial employment, new assignments and any time you introduce a new chemical hazard into the workplace.
In addition, there may be state specific training needs.
You generally cannot prohibit otherwise legal activity, such as travel abroad by an employee. You can and should monitor employees returning from travel to risky environments for signs of illness. Refer to the CDC website for steps to take.
As noted earlier, the ADA prohibits employers from making disability-related inquires and requiring medical examinations unless it fits into one of the two previously mentioned categories.
The EEOC instructs employers that the assessment by the CDC or public health authorities provides objective evidence needed for disability-related inquiry or medical examination.
No, the government has recently sent a reminder to all employers, especially those involved in providing healthcare, that they must still comply with the protections contained in the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule during the COVID-19 coronavirus outbreak.
WAGE AND HOUR ISSUES
Under the Fair Labor Standards Act (FLSA), for the most part the answer is “no”. FLSA minimum-wage and overtime requirements attach to hours worked in a workweek, so employees who are not working are not typically entitled to wages.
Please consult with your Human Resource Client Manager regarding exempt employee time-off.
If someone is sent home due to illness, follow your policy for return to work protocol. Employees should be allowed to use PTO according to your handbook policy. The center always reserves the right to continue pay without requiring employees to use PTO, but this will set a precedence. You cannot select one employee over another for this benefit.
This is a policy question. In general, if employees miss time from work, paid-time off balances can be applied. Check your handbook to verify if you allow the option of unpaid time off. There are now numerous state mandated time off policies as well. Please consult with your Human Resource Client Manager.
Employees who are concerned (and not otherwise ill) can request time-off. It is up to the discretion of management to allow for time-off in these circumstances. Time-off would be covered by PTO leave.
Section 13(a) of the Occupational Safety and Health Act (OSHA) has specific definitions of what would be considered “imminent danger” where an employee has cause to refuse to work.
FFCRA requires that there be work or telework available for you in order to qualify for paid sick leave, under a Federal, State or local quarantine or isolation order due to COVID-19. You may not take paid sick leave for this qualifying reason is your employer does not have work for you as a result of shelter-in-place or a stay-at-home order.
Yes, employees requesting leave could be protected by the Family and Medical Leave Act (FMLA) to the extent they would otherwise meet FMLA-eligibility.
Generally, no, because in most cases the COVID-19 coronavirus is a temporary condition. If the virus substantially limits a major life activity, such as breathing, then ADA may be implicated. Also, anytime you treat someone as disabled, that could trigger ADA coverage.
Yes, you can send employees home who exhibit signs of illness without violating ADA restrictions.
Employers can provide general information to employees that someone in the company is infected with the virus. To remain compliant with the ADA the employer cannot identify the individual by name or methods of identifying the individual or the individual with whom they may have had contact.
Under the FFCRA you may take paid sick leave only to seek a medical diagnosis or if a health care provider otherwise advises you to self-quarantine. If you did not seek medical care or advice, you are not eligible for this benefit, even if you have COVID-19 symptoms. You are also not eligible for benefits under FFCRA for reasons other than COVID-19.
Yes, under special circumstances and with the Employer’s permission. Exceptions:
- EFMLA and EPSL do not apply to employers with more than 500 employees.
- Employers of health care providers (doctors and others that HHS deems a provider of health care) may elect not to provide this leave to those employees.
- Employers with less than 25 employers do not need to protect a job that is eliminated due to a downturn in business (but there are strict requirements to be able to prove this.
Yes, as an employer you can make this decision, but it is up to the employee to decide whether they want to utilize other paid time off benefits. Please note that the employer will not receive a tax credit for the supplemental pay.
In general, borrowers can calculate their aggregate payroll costs using data either from the previous 12 months or from calendar year 2019. For seasonal businesses, the applicant may use average monthly payroll for the period between February 15, 2019, or March 1, 2019, and June 30, 2019.
An applicant that was not in business from February 15, 2019 to June 30, 2019 may use the average monthly payroll costs for the period January 1, 2020 through February 29, 2020.
Borrowers may use their average employment over the same time periods to determine their number of employees, for the purposes of applying an employee-based size standard.
No. The exclusion of compensation in excess of $100,000 annually applies only to cash compensation, not to non-cash benefits, including:
- employer contributions to defined-benefit or defined-contribution retirement plans
- payment for the provision of employee benefits consisting of group health care coverage, including insurance premiums; and payment of state and local taxes assessed on compensation of employees
No. Small business concerns can be eligible borrowers even if they have more than 500 employees, as long as they satisfy the existing statutory and regulatory definition of a “small business concern.”
A business can qualify if it meets the SBA employee-based or revenue-based size standard corresponding to its primary industry
Some ASC’s not eligible for PPP due to Hospital affiliation (for example) may be eligible for the Employee Retention Tax Credit.
Launched by the IRS 3/31/2020. Applies to Wages paid after March 12, 2020, and before Jan. 1, 2021, are eligible for the credit.
Stated purpose is to encourage people to keep employees on their payroll.
Qualifying employers must fall into one of two categories:
- The employer’s business is fully or partially suspended by government order due to COVID-19 during the calendar quarter.
- The employer’s gross receipts are below 50% of the comparable quarter in 2019. Once the employer’s gross receipts go above 80% of a comparable quarter in 2019, they no longer qualify after the end of that quarter.
The refundable tax credit is 50% of the first $10,000 of qualifying wages paid per employee per quarter.
Wages paid after March 12, 2020, and before Jan. 1, 2021, are eligible for the credit.
Wages taken into account are not limited to cash payments, but also include employer-cost of provided health care.
Significant provisions of the bill are the coronavirus-related hardship distributions and loans which give qualified individuals access to their individual retirement plan accounts without the current restrictions, and in some cases penalties.
SBA loan program under section 7(a) of the Small Business Act (15 U.S.C. 636(a)).
To provide eligible businesses with cash to meet payroll (including benefits) and other fixed costs (such as rent, interest on mortgages, and utility payments).
Traditional Section 7(a) loan uses include: plant acquisition, construction, conversion, or expansion, including the acquisition of land, material, supplies, equipment, and working capital. These uses are not subject to loan forgiveness under the CARES Act.
Contingent on the Surgery Center being in operation before February 15, 2020 and had employees for whom the borrower paid salaries and payroll taxes or paid independent contractors.
A small business with fewer than 500 employees (The 500-employee threshold includes all employees: full-time, part-time, and PRN).
A small business that otherwise meets the SBA’s size standard.
A 501(c)(3) with fewer than 500 employees.
An individual who operates as a sole proprietor.
An individual who is self-employed who regularly carries on any trade or business.
The maximum loan amount would be 250% of the employer’s average monthly payroll costs with a maximum loan capped at $10 million.
Generally, loans will be forgiven to the extent the borrower demonstrates that the proceeds were used to cover the following during the period between 2/15/2020 through 6/30/2020:
- Payroll costs (as defined above)
- Rent obligated under a lease in effect before 2/15/2020
- Utility costs for services which began before 2/15/2020
- Interest on the business’ mortgage obligations
The list of items that can be purchased with HSA and FSA dollars has increased. For example, HSA’s and FSA’s can be used to purchase over-the-counter drugs.
The limits on the annual amounts that can be contributed into these accounts have not changed, but the deadline for making a single years contribution to the accounts is tied to the tax filing deadline. And because the tax filing deadline has been extended to 7/15/2020, so is the deadline for contributing to these accounts has also been extended.
HSA funds can be used to pay premiums for independent medical insurance plans or for a plan elected through COBRA.
EMPLOYEE CARE QUESTIONS
We recommend that you seek advice/care in the following order
- Contact your medical provider first
- Teladoc is another option if you are covered by the MedHQ Medical Plan
- Urgent care
- Emergency room
Humana EAP is also a great source if you are feeling stress or concern about the coronavirus impact.
For more information https://www.cdc.gov/coronavirus/2019-nCoV
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