Employee/Personnel Matters

How do the new paid leave benefits (Sick Leave and Expanded Family Leave) interact with each other, as well as our employees' existing leave benefits (FMLA and PTO)?

CUNA & Affiliates’ Compliance Blog post of 6/1/20 breaks it down:

Expanded Family Leave & Paid Sick Leave: Generally, when an employee qualifies for leave under both EFMLA (Expanded Family Leave) and EPSLA (Paid Sick Leave) because the leave is to care for a child whose school or daycare is closed or child care provider is unavailable due to COVID-19, an employee may first use the two weeks of Paid Sick Leave concurrently with the first two weeks of unpaid Expanded Family Leave (EFMLEA). Any remaining leave taken for this purpose is paid under the Expanded Family Leave.

Expanded Family Leave (EFMLEA) & Regular FMLA: Where an employee has already taken some FMLA leave in the current twelve-month leave year, the maximum twelve weeks of Expanded Family Leave is reduced by the amount of the FMLA leave already taken in that year.

Expanded Family Leave & Other Accrued Credit Union Provided Leave: If an employee is taking Expanded Family Leave, and they have already used all of their ESPLA Paid Sick Leave, they may elect, or the credit union may require them, to use any accrued leave, such as vacation or paid time off for the first two unpaid weeks of Expanded Family Leave. This leave must run concurrently with the Expanded Family Leave. This flexibility carries out the purposes of the Families First Coronavirus Response Act (FFCRA) by allowing employees to receive full pay when they have preexisting accrued paid time off available, while minimizing employee absences.

If Expanded Family Leave is used concurrently with another source of paid leave, the credit union has to pay the employee the full amount to which the employee is entitled under the preexisting paid leave policy, even if that amount is greater than the EFMLEA maximum of $200 per day or $10,000 in the aggregate. But the credit union’s eligibility for tax credits is still limited to the maximum amounts.

Paid Sick Leave & Other Accrued Leave: Neither eligibility for, nor use of, Paid Sick Leave may count against an employee’s balance or accrual of any other or type of leave. An employee may choose to use Paid Sick Leave prior to using any other type of paid leave. As this decision is at the employee’s discretion, the credit union may not require an employee to use another source of paid leave or unpaid leave before the employee takes EPSLA Paid Sick Leave.

Click here to read the full posting, including comparison charts and examples.

CAN THE CREDIT UNION TAKE THE TEMPERATURE OF EMPLOYEES REPORTING TO WORK?

Measuring an employee's body temperature is generally considered a medical examination, and an employer’s ability to require an employee to submit to a medical exam is significantly limited. However, as of March 17, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) has confirmed that employers may measure an employee’s body temperature in response to the current COVID-19 pandemic. The EEOC determined that this was permissible because the CDC and state and local health authorities have acknowledged the risk of community spread of COVID-19 and issued attendant precautions. The EEOC cautions, however, that persons with COVID-19 may not always have a fever.

Any medical information collected about an employee (e.g., the results of any temperature scan, the fact that an employee has a fever or other symptoms of COVID-19, etc.) should be kept confidential by the employer and only communicated on a need-to-know basis only. Records should be securely stored separate from other personnel records. Employers should avoid revealing the identity of an employee with a fever or who presents symptoms of, or tests positive for, COVID-19.

Any policy with regard to taking employee temperatures should be administered consistently and in a non-discriminatory manner. Employers should also keep in mind that time spent by a non-exempt employee waiting to have his or her temperature scanned will likely be deemed compensable time worked.

What types of leaves are available for employees?

For those employees who become ill, are caring for ill family members, or who are responding to voluntary or mandatory preventative measures, credit unions should be discussing with their employees what leaves may be available to them.

Paid Sick Leave: An employee may choose to use any accrued paid sick leave if they become ill with the coronavirus, or if a family member becomes ill and the employee must care for them. Moreover, paid sick leave may be used for self or family preventative care where civil authorities recommend a quarantine. Paid sick leave may not be used if an employee needs to stay home for other reasons such as because their children’s school has closed, but the employee may have other leaves available. Note that an employer may not require an employee to exhaust paid sick leave if the employee stays home due to illness or quarantine, use of this leave is the employee’s choice, However, if an employee does choose to use their paid sick leave, an employer may require that a minimum of two hours of that leave be used at a time. A federal bill is currently pending in the Senate to expand paid sick leave benefits related to the coronavirus.

Paid Time Off/Vacation: If an employee has accrued paid time off or vacation time, they may use this leave if their paid sick leave has been exhausted, or for any other reason provided that the terms of the paid time off or vacation policy provide for leave under those circumstances. An employer may require an employee to use any paid time off or vacation benefits (not paid sick leave) before resorting to unpaid leave.

Family Leave/State Disability Insurance: If applicable to your credit union, employees may request leave under the Family and Medical Leave Act (FMLA), provided that they otherwise meet the eligibility requirements. While FMLA is generally an unpaid job-protected leave of absence, employees may use accrued and available paid sick leave and/or vacation/PTO when applicable. The federal bill currently pending in the Senate would expand FMLA protections related to the coronavirus. California’s paid family leave (PFL) and state disability insurance (SDI) benefits have also been expanded in response to the coronavirus. PFL is available to an eligible employee who is caring for a family member who is ill or quarantined with COVID-19. An employee who is unable to work due to having or being exposed to COVID-19 may be eligible for SDI benefits, subject to providing the necessary medical documentation. Moreover, an employee who is affected by a reduction of work hours or mandatory office closures can file a claim for State Unemployment Insurance (UI) benefits.

School Activities/Emergency Leave: In California, employers with 25 or more employees working at the same location must permit employees to take time off for certain child-related activities, including school closures, or child-care unavailability. This time off may be paid or unpaid depending on the employer’s policies, and the employer may require that paid time off be used for this purpose. Generally, the employee may take up to 40 hours per year, 8 hours per month for child-related activities. However, during an emergency (such as this COVID-19 pandemic), these limitations do not apply. As such, an employee may use all 40 hours continuously during this pandemic if they must remain at home due to their child’s school closing, or childcare becoming unavailable. In some cases, an employee may be eligible for UI benefits during this time.

What about telecommuting?

Some credit unions may already have in place a telecommuting (remote working) policy and those that don’t may consider implementing one. While not all jobs are conducive to telecommuting, to the extent feasible, this option allows for an employee to continue performing their job functions with compensation while adhering to government guidance to limit person-to-person contact and self-isolate. Keep in mind that consideration will need to be given to necessary tools and equipment, such as laptops and mobile or office phones, logistics for expense reimbursements, as well as well as how productivity will be managed. If not already set forth in a written policy, the credit union may use a telecommuting agreement to address these issues. Be careful to apply this policy consistently. The decision to allow or not allow an employee to work remotely should be based on a legitimate business reason and not on any basis that may be considered discriminatory or result in a disparate impact. Please note that this also tends to set a precedent for telecommuting when considering reasonable accommodations for an employee with a disability that might prevent the employee from coming into the workplace.

**Information current as of March 18, 2020. Credit unions are encouraged to regularly check the Frequently Asked Questions page of the DLSE website and the EDD’s Coronavirus 2019 (COVID-19) webpage for updates.

Are there other remote work considerations amid the Coronavirus?

Click here to read other considerations from the California Chamber of Commerce.

I'm seeking guidance on how to respond if an employee were to test positive for COVID-19.

Ballard Spahr LLP, a national law firm with offices throughout the country, including California and Nevada, has COVID-19 resources on its webpage. One of these resources—Ballard Spahr, LLP Employer Guidelines: Responding To a Positive COVID-19 Diagnosis in the Workplace—includes guidance and sample notifications for responding to a positive workplace COVID-19 diagnosis. (Posted with permission from Ballard Spahr LLP).