As we begin to settle-in to the realization that social distancing, telecommuting, and face-masks are now part of our collective ‘new normal,’ it’s important to fully understand how your company is handling or plans to handle important employee records and documentation during this period of uncertainty. Here are some questions to start tackling:
- What Should We Be Documenting in Terms of Employee Requests for Leave under the Emergency Family Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA)?
On April 1st, the Department of Labor (DOL) issued some initial guidance about the EFMLEA and the EPSLA, with intermittent updates to its “FAQ” page. In addition, ST&A has posted an article on its website explaining what documents and information employees must provide to their employers to request leave what employers may request from employees. On a practical level, make sure to only collect information specific to the leave request. The Families First Coronavirus Response Act (FFCRA) limits the types of medical inquiries/documents to those specifically related to your employees’ request for leave.
Subsequently, new DOL and IRS guidance now requires employers to compile documentation that sets out the methodology used by the employer to determine the amount of qualified sick and family leave wages paid to an employee, including records of work, telework, and amount of qualified leave. Such documentation includes:
- Documents used to determine the employee’s regular hours per week;
- Documents used to determine the employee’s regular rate; and
- Documents showing how the employer determined the amount of qualified health plan expenses that the employer allocated to wages.
Although the FFCRA does not specify a required length of time for document to keep these records, we recommend keeping these documents for at least three years to be consistent with record keeping requirements for other wage related and personnel records laws.
- Do We Have to Report to If A Worker Has Tested Positive for COVID-19?
It depends. On April 10th, the Occupational Safety and Health Administration (OSHA) issued guidance to employers on reporting cases of COVID-19 to OSHA. Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and employers would be responsible for recording cases of COVID-19 if a confirmed case is work-related and meets other general recording criteria.
However, OSHA’s newest guidance states that employers not in the healthcare, emergency response (e.g., emergency medical, firefighting, and law enforcement services), or correctional industries DO NOT need to report cases of COVID-19 except where:
- There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
- The evidence was reasonably available to the employer. For example, this would include information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.
What all of this ultimately means is that employers of workers in the healthcare, emergency response (e.g., emergency medical, firefighting, and law enforcement services), or correctional industries must continue to make work-relatedness determinations and reports pursuant to OSHA regulations (29 CFR § 1904) on Form 300.
For more on OSHA recordkeeping guidance, visit https://www.osha.gov/recordkeeping/.
This article is not legal advice but should be considered as general guidance in the area of employment and corporate law. Amy Dieterich, Jordan Payne Hay, and James F. Pross are employment and labor law attorneys; others at the firm handle business and other matters.