Comprehensive. Efficient. Successful.

President Trump signed the Families First Coronavirus Response Act (FFCRA) into law on March 18, 2020.  This has the potential to significantly impact small and mid-size employers.  The FFCRA requires employers with less than 500 employees to provide sick benefits to employees affected by COVID-19.  It also expands FMLA, requiring covered employers to provide paid protected leave to employees impacted by school closures and interruptions in school care caused by the virus.  Combined paid leave is capped at 12 weeks under the FFCRA.  The changes listed below are effective April 1, 2020.

The FFCRA can be broken down into two parts: The Emergency Paid Sick Leave Act and the FMLA Expansion.  Here is a brief summary.

The Emergency Paid Sick Leave Act

• Employers with 50 or less Employees can be exempted from coverage if they can show compliance would “jeopardize the viability of a business as a going concern”.
• Requires employers with less than 500 employees to provide paid sick leave to employees who are unable to work or telework if the employee:
  • Is subject to a federal, state, or local quarantine or isolation order.
  • Was advised by a healthcare provider to self-quarantine due to COVID-19 concerns.
  • Is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • Is caring for an individual who is subject to isolation or quarantine order or has been advised by a medical professional to self-quarantine.
  • Is caring for a child whose school or childcare center/provider has closed or is unavailable due to COVID-19 precaution.
  • Experienced a substantially similar condition specified by the Secretary of Health & Human services.
• Full time employees are eligible for 80 hours of leave.
• Part-time Employees are eligible for the average number of hours they work in the two-week period prior to work stoppage.
• Leave is capped at $511/day for an employee’s own COVID-19 diagnosis and $211/day for taking care of a child.
• Employees are eligible regardless of how long they have worked for the company.
• Employers cannot require employees to use other paid time off benefits provided by the employer before using the FFCRA benefits.
• Employers must post notice of the requirements in the workplace where notices are customarily posted.

Expansion of FMLA

• Applies to employers with less than 500 employees.  However, Employers with 25 or less employees are exempt from the expanded FMLA coverage.
• Employees must have worked for at least 30 calendar days prior to requesting leave.
• Secretary of Labor may exempt employers with 50 or less employees where “the imposition of such requirements would jeopardize the viability of the business as a going concern”.
• Secretary of Labor may also exempt healthcare providers and emergency responders.
• Leave is unpaid for the first two weeks (10 business days).
• After first two weeks, leave is paid at 2/3 of the employee’s usual pay and capped at $200/day.
  • Variable scheduled employees use a 6 month average to calculate number of hours to be paid.
• This removes the exclusion that the employer must employ 50 employees within a 75-mile radius.  In other words, employers with 500 or fewer employees may now be required to provide FFCRA-protected leave.
• It also removed the 12 month and 1,250 hour employee qualification and replaced it with the 30 day qualification stated above.

If the employee is laid off prior to these provisions take effect (i.e. prior to April 2, 2020), the only benefits they are eligible for are the expanded Unemployment Benefits outlined below.  That said, if an employee has returned to work with restrictions from a prior work related injury, carriers/employers may owe a renewed period of TTD based on the employer’s inability to accommodate those restrictions.

Expanded Unemployment Benefits

• Secretary of Labor provides emergency funding to the state unemployment trust funds.
• Eligibility requirements are relaxed, to include work search requirements and waiting a week in Wisconsin.
• Increased access to unemployment compensation for those directly impacted by COVID-19 due to illness or direction from a public health official to isolate or quarantine workers.

Tax Credits for Employers

• Employers will receive a dollar-for-dollar payroll tax offset and the IRS will provide a refund for any amount paid that the payroll tax reimbursement would not cover

If you have any question on how to navigate this, please contact our office to discuss.

As precautions increase, and more Employers are encouraging work from home, the chance of a work injury occurring at home also increases.  Here are a few pointers to help Employers and Worker’s Compensation Carriers deal with these issues:

• Employees, even while at home, may still be covered by the Wisconsin Worker’s Compensation Act.
• Working at home may be covered under the Traveling Employee Doctrine, similar to an Employee working in a hotel room while traveling, unless there is a personal or private deviation from regular work duties.
• Private or personal deviation do not include injuries covered by the personal comfort doctrine (i.e. getting water, using the restroom, etc.) even though the Employee is at home.
• There may be some hazards in the Employee’s home, which the Employer cannot exercise control over (i.e. children, pets, stairways (zones of danger), etc.), that could cause an injury, but may not stop a judge from finding the injury compensable.  A good comparison is a traveling Employee who is injured driving for work.  The Employer cannot control the other driver who caused the injury, but the injury will likely be found compensable.
• A fact specific analysis is key with these types of claims; thus, recorded statements need to be taken early and obtain as many details as possible before facts change to further support a work injury.
  • The recorded statement should include details about the home environment.
  • Employers or Carriers may need to obtain pictures if the claimed injury and/or environment is confusing or warrants clarification.
• It is unlikely there will be any witnesses, which increases the importance of obtaining a good recorded statement.

Scenarios that may be confusing, but would likely be covered:

• An on-call Employee is sitting on the couch and gets up to answer the phone.  While getting up in a hurry to answer the phone, the employees hurts a knee or back.  A judge may find this compensable simply because the employee was on-call and doing something for the Employer by getting up to answer the phone.
• An on-call Employee goes out to salt the driveway just in case he is called in to work.  He slips on the ice.  This could be found compensable because the act was undertaken for the benefit of the Employer (i.e. Applicant being able to come to work).
• An Employee is walking on a treadmill while responding to work email on a tablet.  The reading and responding to email may be deemed a work activity, and the injury would likely be found compensable.

Basically, activities that are undertaken for the benefit of the Employer will put Employees in the scope of Employment, and an injury while in the scope will likely be covered, unless Employers and Carriers can demonstrate there was a deviation or some other reason the claimed injury should not be covered.

Regarding work-related exposure, there may be compensability issues for Employees who do not travel, but have come in contact with other Employees who have traveled to an infected area or were exposed during the course of their employment.  Some examples include healthcare workers who may have not had direct contact with an infected individual but may have contracted the illness from a coworker.  This claim would likely be found compensable.

Likewise, a construction worker building an addition to a hospital who comes in contact the illness may have a compensable claim if the illness can be traced to the hospital jobsite he/she worked at.  This is similar to the H1N1 analysis referenced in our March 12, 2020 post.

Another example is a faculty member for a school or university who was unknowingly exposed to the illness and was subsequently quarantined.  This period could be deemed a compensable work injury because the exposure occurred at work.  The same holds true for other Employees who had subsequent contact due to their proximity to the infected individual.

If you have any questions, contact our office to discuss.

As we are well aware, the novel coronavirus has entered the United States, and the Centers for Disease Control (CDC) has advised Employers to have a plan ready to deal with this virus and the potential spread.  That has left many Employers questioning what they can and cannot do, along with whether an Employee who contracts the virus would be covered under the Wisconsin Worker’s Compensation Act.  Here are a few tips to assist you in navigating these situations:

• Restrict work travel that is not 100% necessary for job performance.
• Restrict non-essential personnel access to the workplace (i.e. no unnecessary visits from clients or relatives, especially if they have just traveled outside the state).
• Offer to pay for testing, especially if you employ traveling sales people.  Not only will this identify potentially sick Employees early enough to be quarantined, it will also help calm concerns of fellow Employees, if the test comes back negative.
• Identify the precautions you are taking to stay open (i.e. extra cleaning, Employee testing, etc).
• Encourage Employees to disinfect commonly shared surfaces, encourage good hygiene, provide hand sanitizer, and encourage Employees who feel sick to stay home.
• Establish telecommuting policies to address potential workplace closings – this may include updating your Employee handbook to provide clear instructions for everyone.

As far as determining whether you owe WC compensation for an employee contracting coronavirus, things to consider:

• Generally, the flu and cold are not covered by Worker’s Compensation as there is no way to know whether they came from work or elsewhere.
• That said, when H1N1 (Swine) Flu occurred in 2009, some Wisconsin judges said that if an Employee traveled to an infected area for work and became sick, the sickness may be deemed work related because it was a closer connection.  Thus, if any Employees contract coronavirus, then steps need to be taken to:
  • Identify whether the Employee recently traveled and where to.
  • Whether they had contact with other Employees since returning.
  • Testing or recommending testing for other Employees if they were possibly exposed.
• If an Employer shuts down due to coronavirus exposure and the same Employer had previously accommodated light duty restrictions for an injured Employee, the Employer/WC carrier may owe a renewed period of TTD based on the inability to accommodate the restrictions.

Contact us if you have any questions.