COVID-19 has hit the Louisiana small business world hard.
Reopening phases, executive orders, and legislation change rapidly which is why Sheppard Law has been trying to offer easy to digest information to the Northshore community since COVID-19 started. In April we published Small Business COVID-19 Resource blog for our local community and continued to update via Instagram stories with breaking news re: legislation and orders as it happened. When the Stay At Home Order was issued, we interpreted it for our Slidell small business owners in another blog. During the virus we started hosting free Sheppard Law Small Business Webinars for Covington, Slidell, Mandeville, New Orleans, Abita Springs, and the Northshore area small business owners.
The most frequent question we get is: what exactly am I supposed to do as a small business right now with my employees? First and foremost, remember that your employees are your front line workers. They are the face of your business. You should listen to their needs and concerns and try to open lines of communication with them to address their real, underlining concerns.
According to the EEOC, employers can ask the following of their employees or contractors:
Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA!
This means that if you are taking temperatures or collecting medical notes, then keep them in a separate file from the employee's personnel file. DO NOT DISCLOSE YOUR EMPLOYEES HEALTH INFORMATION....unless you must report to a Health Agency. This contemplates a lawyer subpoenaing the personnel file down the road and you "accidentally" turning over an employees medical records....a big ol' "No-No".
OSHA Requirements To Report in the OSHA 300 Log
1. The case is a confirmed case of COVID-19;
2.T he case is work-related; and
3. The case involves one or more of the general recording criteria (e.g., medical treatment beyond first aid, days away from work).
Aside from the regular Americans with Disability Act requirements, here are some accommodations you may consider offering your Slidell business employees:
You can learn more directly from the EEOC here.
Long FAQ by the EEOC answering questions businesses may have concerning expanded FMLA and other COVID-19 legislation can be found here.
1. Is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
2. Has been advised by a health care provider to self-quarantine related to COVID-19;
3. Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
4. Is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
5. Is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19; or
6. Is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Paid sick leave under the Emergency Paid Sick Leave Act is in addition to any form of paid or unpaid leave provided by an employer, law, or an applicable collective bargaining agreement. An employer may not require employer-provided paid leave to run concurrently with—that is, cover the same hours as—paid sick leave under the Emergency Paid Sick Leave Act.
You may require that any paid leave available to an employee under the employer’s policies to allow an employee to care for his or her child or children because their school or place of care is closed (or child care provider is unavailable) due to a COVID-19 related reason run concurrently with paid expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act. In this situation, the employer must pay the employee’s full pay during the leave until the employee has exhausted available paid leave under the employer’s plan—including vacation and/or personal leave (typically not sick or medical leave). However, the employer may only obtain tax credits for wages paid at 2/3 of the employee’s regular rate of pay,up to the daily and aggregate limits in the Emergency Family and Medical Leave Expansion Act ($200 per day or $10,000 in total).
Finally, an employee may elect—but may not be required by the employer—to take paid sick leave under the Emergency Paid Sick Leave Act or paid leave under the employer’s plan for the first two weeks of unpaid expanded family and medical leave, but not both.
If, however, an employee has used some or all paid sick leave under the Emergency Paid Sick Leave Act, any remaining portion of that employee’s first two weeks of expanded family and medical leave may be unpaid.
During this period of unpaid leave under the Emergency Family and Medical Leave Expansion Act, the employee may choose—but the employer may not require the employee—to use paid leave under the employer’s policies that would be available to the employee to take in order to care for the employee’s child or children because their school or place of care is closed or the child care provider is unavailable due to a COVID-19 related reason concurrently with the unpaid leave.
If a worker quits in the absence of COVID-19 criteria, employers should immediately inform the Louisiana Workforce Commission via its Form 77 –Separation Notice, which you can access by clicking HERE.
In these cases, employers will need to note the business is open, the employee's function is still required and that there are no COVID-19 circumstances necessitating the individual’s decision to leave.
Please note that this Separation Notice must be filed within 3 days of the date the worker separates from the business.
We can't plan for a pandemic or disaster but Slidell business owners can plan ahead. Some things you may want to consider with the changing FMLA laws and legislation:
These laws are nuanced and every business and employee/contractor relationship is different with its own set of facts. If you want to discuss how to protect your small business or family during this time, please Contact Sheppard Law to schedule a teleconference consultation or phone call.
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