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Managing Through CoV

Frequently Asked Questions (FAQ) 3-20-20

Events are moving quickly, and we are using this news page to provide you with the most up-to-date information available on both the Coronavirus and the Families First Coronavirus Response Act, or FFCRA. If you are looking for information on the FFCRA, please click here.

FFCRA & STIMULUS

Additional disaster relief and stimulus packages are in the works, including from the federal government, the SBA and WEDC. This may include: (1) $1,000 to every American adult; (2) additional changes to Unemployment Insurance benefits; (3) financial aid targeted to specific businesses and industries.

UNEMPLOYMENT INSURANCE

Q: How much does UI pay?

A: It depends. See DWD's Handbook for Employers.

Q: How much will it cost the company?

A: See Sec. D (How Your Tax Rate is Determined). Further, know that H.R. 6201 budgets $1 billion in emergency relief to assist states in expanding UI coverage relative to CoV and mitigate CoV-related employer charges.

Q: Do employees qualify if they opt to self-quarantine?

A: In most cases, no. The facts of each circumstance are important. If you allow an employee to telework, they do not qualify for benefits because they are working. If you require an employee to stay home but do not offer telework, they may be eligible for benefits.

Q: Do employees qualify if they are subject to a mandatory quarantine?

A: In most cases, yes. If the employee intends to return to work, they are most likely eligible. If not, the employee may not meet the federal eligibility criteria, which presently require them to be able to work, available for work, and actively seeking suitable work.

Q: Do owners qualify?

A: Whether owners are eligible for UI benefits depends on the corporate form, and, in some instances, the tax treatment of the entity by the IRS. In general, partnerships are "employers" and, as such, the partners are employers, not employees eligible for UI benefits. Sole proprietors are ineligible for the same reason. By contrast, owners of corporations may qualify. As to LLC’s, absent an IRS 2553 filing, multi-member limited liability companies are partnerships and single-member limited liability companies are sole proprietorships.

Where a UI claimant "owns or controls directly or indirectly" 25% of a corporation, or where 50% of the corporation is owned or controlled directly or indirectly by the claimant, spouse, child, or parent of a minor child, or some combination thereof, then even if the claimant is an employee, the claimant is limited to 10 weeks of UI benefits based on that employment. For LLCs that are treated as corporations, and for family members that are not members of the LLC, the same two triggers (25% "directly or indirectly" 50% "filial ownership rule") apply. See also: DWD's Handbook for Employers.

TERMINATION/LAYOFF

Q: If I lay off employees, need I get a signed severance agreement from each?

A: Not necessarily. On the one hand, such an agreement generally includes a waiver of claims and a promise of confidentiality—both of which are to your benefit. On the other, the employee may be reluctant to sign (and especially if not offered much in the way of severance). In the event you are laying off more than one person, you may need to provide all with details as to who was laid off and who was retained. Seek legal counsel first.

Questions?

Call 414-446-8800, or email us at adam@goldsteinsc.com for more information or to schedule a consultation.

Q: If I lay off employees, need I pay PTO and other unused leave?

A: No, unless your handbook, policy, or past practice says so.

Q: If I lay off employees, can I continue their health insurance?

A: Yes. Many insurers are waiving the "actively at work" requirement. Accordingly, if you continue to pay the premium (and the employee their portion, or you are covering it with a short-term loan) health insurance can continue. If you cannot or do not do this, they qualify for COBRA or an individual policy via the ACA Exchange.

Q: Need I layoff least-senior employees first?

A: Not necessarily, as long as you can provide a bona fide business reason for your determination. Seek legal counsel first.

Q: Can I offer employees an unpaid leave of absence?

A: Yes. You can also encourage them to file for Unemployment Insurance.

Q: What is the WARN Act?

A: The WARN Act applies to shut downs and mass layoffs. There is a Wisconsin equivalent, which is similar but not identical. While there are some emergency exceptions, the penalties for a violation are steep. Seek legal counsel first.

PRACTICAL/BUSINESS CONSIDERATIONS

Q: What should we tell our employees?

A: Provide factual information and assure employees that their health and safety is paramount. Promise to be transparent about what you know, and to share what you know when you know it.

Q: What if an employee contracts CoV, does Worker’s Compensation cover it?

A: CoV is only covered by Worker's Compensation if it is established that the employee(s) contracted CoV at work.

Q: How does this all apply to my business?

A: Every business is different.

  • Certain considerations come into play for businesses that are “high touch” (e.g., fitness, hair salons, hospitality). For example, tools and materials in such businesses may be frequently passed between employees, or to customers.
  • As you might imagine, there are special considerations for businesses that serve the young, the elderly, or other vulnerable populations (e.g., nursing homes, CBRF, childcare, camps). For example, the elderly are more susceptible and the health effects more severe. The density of population at camps and childcare facilities increase the risk of spread.
  • Most important are your employees—how long have they been with you, how skilled are they, and what can you do to reassure them without overpromising?
  • What if you have an employee who comes down with CoV. Do you have processes in place to quarantine and clean, or are you, for all intents and purposes, closed (or closed by the government)?

OTHER QUESTIONS

Q: What may we ask of an employee who calls in sick?

A: During a pandemic, you may ask employees if they are experiencing CoV symptoms. This includes fever, chills, cough, shortness of breath, or sore throat.

Q: Can we take an employee’s temperature?

A: Yes (although, in ordinary times, no). Note that some people with CoV do not have a fever. Also, be sure your testing device is accurate.

Q: Can we require employees to stay home if they have symptoms of CoV?

A: Yes.

Q: Can we tell employees if a co-worker has tested positive?

A: Yes, but do not share any identifying information about the employee who tested positive.

Q: Can we require a doctor's note upon the employee’s return to work?

A: Yes, however, doctors and other health care professionals may be too busy to provide fitness-for-duty documentation. Therefore, you might accept a stamp or email, or rely upon your own screening.

Q: Can we screen applicants for symptoms of CoV?

A: Yes, after making a conditional job offer and assuming you are doing the same for all applicants. If taking temperature, note that some people with CoV do not have a fever. Also, be sure your testing device is accurate.

Q: May we withdraw a job offer (or delay the start date) for an applicant who was to start immediately but the individual has CoV or symptoms of it?

A: Yes.

Q: What if an employee refuses to report to work, for fear of contracting CoV?

A: Respect their choice and explore telework options or unpaid leave. They likely do not qualify for Unemployment Insurance.

Q: Do I have to allow employees to work from home?

A: No.

Q: Do I have to pay employees who are sent home because of the company’s own fear of CoV?

A: Presuming there is a reasonable belief of exposure, you have a few options. In some circumstances, you may require a set period away from the office and medical clearance to return. If feasible, the employee may work remotely during this period. Some employers have enacted a paid incubation period for employees (e.g., fourteen days away from the workplace without showing symptoms of CoV) before they can return to the workplace. Keep in mind that these decisions should be made on a case-by-case basis and based on the facts of each case. The Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), and Worker’s Compensation law may also come into play.

Q: What if an employee has been caring for a relative who is sick?

A: Presuming there is a reasonable belief of exposure, you have a few options. In some circumstances, you may require a set period away from the office and medical clearance to return. If feasible, the employee may work remotely during this period. Some employers have enacted a paid incubation period for employees (e.g., fourteen days away from the workplace without showing symptoms of CoV) before they can return to the workplace. Keep in mind that these decisions should be made on a case-by-case basis and based on the facts of each case. The Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), and Worker’s Compensation law may also come into play.

Q: An employee has exhibited signs of sickness (e.g., lingering cough, sneezing) at work. What do we do?

A: Send the employee home. Asking an employee who is showing symptoms of a contagious illness to leave the premises is not illegal. When exiting the building, the employee should avoid all contact with others and minimize contact with work surfaces, tools, furniture, and any other objects. Contact professionals to disinfect the employee’s workspace and counsel other employees to avoid the workspace until disinfected. Communicate regularly with the employee as to his/her prognosis and make available any work they can do remotely (if working remotely is feasible and the employee is not incapacitated).

Q: An employee has been diagnosed with CoV. What do we do?

A: Assess who has been in close contact with the employee and/or their work area. As to these employees, consider sending them home as well and, at a minimum, closely monitor their health and restrict their contact with others. Contact professionals to disinfect the employee’s workspace and counsel other employees to avoid the workspace until disinfected. Communicate regularly with the employee as to his/her prognosis and make available any work they can do remotely (if working remotely is feasible and the employee is not incapacitated).

For more information on CoV, click here, and for more information on H.R. Bill 6201, click here.

Please note: This page contains general information and should not to be construed as legal advice. Seek legal counsel for analysis and advice tailored to your particular circumstances.