AAC RMS COVID-19 Guidelines for Counties

AAC COVER STORY COVID-19 and employment issues

Story by Camille Neemann AAC RMS Counsel

As you are all aware, Gov. Asa Hutchinson declared a public-health emergency on Wednesday, March 11, 2020, due to the first presumptive case of COVID-19 or “coronavirus” appearing in Arkansas. Since that time there have been more confirmed reports of the virus in Arkansas, schools have shut down across the state, and talk of preventing further community spread has already begun. This has created the need to develop action plans quickly on how to handle possible exposure and infection in the workplace.

The below information should not be used in place of individualized legal advice regarding specific employee issues but should be used to make you aware of different questions that may arise. Because we are in uncharted territory due to the scope of COVID-19, this information should only be considered a guideline and we recommend you continue to call for individual advice as needed.

The public health emergency caused by COVID-19 is a rapidly changing situation. New information becomes available, sometimes on a daily, or even hourly basis. Be sure that you are regularly checking the Arkansas Department of Health website, the Centers for Disease Control website, and watching the Governor’s COVID-19 updates as well.

One of the most frequently asked questions is what questions you can ask your employees regarding their health related to COVID-19 and when can you send them home. This is addressed by the Americans with Disabilities Act (ADA).

The ADA typically prohibits an employer from making medical inquires, or requiring medical examinations, unless they are job-related and consistent with business necessity. The exception to this is when the employee poses a direct threat to themselves, or others. The Equal Employment Opportunity Commission (EEOC), is a U.S. agency that enforces workplace anti-discrimination laws, including the ADA. The EEOC has issued guidance that the COVID-19 pandemic meets the direct threat standard, finding there exists a significant risk of substantial harm when someone with COVID-19, or symptoms of it, is present in the workplace at this time.

This means that an employer can send home employees exhibiting COVID-19 related symptoms such as fever, chills, cough, shortness of breath, or sore throat. There is no legal requirement to pay employees when you send them home sick. Each county will need to consider your leave policies in place, including whether you did or did not pass an emergency ordinance related to paid COVID-19 leave. You will also need to follow the requirements under the new federal sick leave provisions which began on April 1, 2020.

If an employee calls in sick you may ask them what their symptoms are to determine if they pose a direct threat as defined by the ADA. You may also take an employee’s temperature when they arrive at work, or during the day. If they have a fever you should send them home until they are at least 24 hours fever free. If an employee receives a diagnosis of COVID-19 or is directed to quarantine by a public health authority or medical provider, you may require a medical release permitting the employee to return to work. As a practical concern, health care professionals are busier than ever with the rapid spread of COVID-19 and may not be able to timely provide such documentation. Employers should consider other forms of certification that an individual does not have the virus, such as forms, fax, or e-mail. Information related to an employee’s fever or other symptoms are subject to the confidentiality requirements under the ADA. This information must be maintained and treated as a confidential medical record.

Family Medical Leave Act (FMLA) obligations and the Families First Coronavirus Response Act

On March 18, 2020, Families First Coronavirus Response Act was passed with an effective date of April 1, 2020. The Act addresses several issues, but this article only highlights a few of the requirements of the provisions under the Emergency Paid Sick Leave Act and impact to current employer obligations of the Family Medical Leave Act with the passage of the Emergency Family Medical Leave Expansion Act.

The Emergency Paid Sick Leave Act provides that covered employers must provide to all employees, regardless of length of employment, paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because: (1) the employee is subject to a federal, state, or local quarantine or isolation order related to COVID–19; (2) the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19; (3) the employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis; (4) the employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2); (5) the employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions; and (6) the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor. If an employee has a beforementioned qualifying reason, a full-time employee is entitled to 80 hours of leave time and a part-time employee, with a set schedule, is entitled to the number of hours equal to the number of hours that such an employee works, on average, over a two-week period. Employers are required to post notice of this information to be placed

where notices to employees are customarily kept. The Department of Labor will provide a sample poster within seven days of the enactment of this law. Further, exclusions promulgated by the Secretary of the Department of Labor regarding the ability to exclude certain health care providers and emergency responders from the definition of eligible employee.

The Emergency Family Medical Leave Expansion Act applies to government employers and their employees who have been employed (on payroll) for at least 30 days prior to their request to take leave. The new leave category under FMLA is limited to when the employee is unable to work or telework due to the need to care for a son or daughter under 18 years old, if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency. This does not include regularly scheduled closings or breaks unrelated to COVID-19. The law provides up to 12 weeks of leave for all FMLA qualifying reasons, including the expanded provisions. This means if an employee has already used some FMLA leave in the relevant 12-month period, they are only entitled to the remainder of the 12-week period, even under the expanded provision. For example, where an employee has already used two weeks of FMLA this year, they are only eligible for 10 more weeks, including due to a school closing. This is not an additional 12week period.

The first 10 days of leave under the expanded FMLA are not required to be paid by the employer. The employee may choose to have the first 10 days be unpaid. They may choose to use their regular PTO bank to cover the first 10 days, or the employee may choose to use their new COVID-19 paid leave as provided by federal law. If the employee uses their 80 hours under federal law, it is to be paid at two-thirds of the employee’s regular rate of pay. The employee would be able to use their other leave banks to cover the remaining one-third. County employers may elect to exclude emergency responders from the benefits of the Emergency Family Medical Leave Expansion provision of the Act. The Department of Labor is expected to issue additional guidance regarding this exclusion.

Employers should continue to monitor the COVID-19 situation for the state and county for safety and employment issues. Keep in mind, that the boundaries of what you can do legally may not necessarily be what you want to do from a practical standpoint. This article serves as guidance on what you can do but should not be construed as advice on what you should do. We recommend you continue to seek individualized legal advice as specific employment issues arise. If you have a question that was not addressed herein, please feel free to reach out to discuss.

AAC welcomes new RMS litigation counsel

The Association of Arkansas Counties (AAC) recently welcomed Camille Neemann as a new AAC Risk Management Litigation Counsel.

Neemann, who has previously worked as an AAC law clerk, joined the staff in February and has brought a wealth of legal knowledge of law to the AAC Risk Management Services program.

“I enjoy assisting county government in legal matters and supporting our community,” she said. “My primary focus is employment and HR related matters, including Equal Employment Opportunity Commission responseses. I am also a part of the AAC COVID-19 response team ”

Neemann is originally from Chandler, Arizona. She completed a bachelor’s degree in political science and history at the University of Nebraska at Lincoln.

She moved to Little Rock in 2015 to attend the University of Arkansas Little Rock William H. Bowen School of Law, from which she graduated in 2018 with a juris doctorate degree. She has served as symposium editor on the Law Review Editorial Board. She currently is a board member on the Young Alumni Board.

“I have always enjoyed reading, writing and researching,” she said. “I love being in the legal field because the practice combines the things I enjoy and provides me the opportunity to help others with legal matters.”

Outside of work, Neemann volunteers with the Circle of Friends Jefferson County Chapter benefitting Arkansas Children’s Hospital and is a Court Appointed Special Advocate for foster care children in Jefferson and Lincoln counties.

County officials may contact Neemann at cneemann@arcounties.org or call 870372-7550.

Handling stress and anxiety of coronavirus fears in your county

Story by Ron Manderscheid Executive Director, National Association of County Behavioral Health and Developmental Disability Directors

Don’t let fear overtake the facts is the most important thing I can say to you about coronavirus fears

As we wake up to an America that is becoming shuttered — schools, churches, theaters, restaurants and businesses all closed or closing for extended periods —our reality has changed dramatically. And even more extreme changes can be anticipated in the coming days.

We all have a personal threat of contracting coronavirus and the growing realization that the pandemic is rapidly changing our lives in very extreme ways. These developments can and will lead to feelings of threat and fear, panic in some, and post-traumatic stress disorder in the most dramatic cases.

To combat these emotional states in our staff and among the very vulnerable who we serve, several actions will be needed:

• Get the facts out, even if they are unpleasant or difficult. It always is better to be informed with the facts than to allow assumptions, innuendo, and rumors to fuel fear. • Have an emergency plan of action and share that plan broadly with staff, clients, and your community. • Maintain ongoing communication with staff and clients, so that an informed point of information is available continuously. • Hold frequent meetings with staff, even if virtually, so that people can express their concerns, fears and hopes. • Provide strong emotional support where it is needed and be less demanding about routine performance.

Everyone is trying to cope in their own way.

The international coronavirus crisis continues to grow. As of Sunday, there have been about 110,000 known cases in 79 countries, and nearly 4,000 persons have died. Just released research from Harvard University concludes that the mortality rate is about 15 persons per 1,000 infected, under the assumption that only about half of those infected actually are ever identified as cases. In the U.S., as of Sunday, there have been more than 400 cases in 34 states, and 19 persons have died. Great uncertainty also exists about the future course of the infection in the US, which is leading to disruptions in business, travel and the stock market.

More testing kits will become available in the United States this week, which should help to contain and control the disease. However, many more testing kits are needed.

Clearly, this period of great uncertainty can lead to fear and, in some cases, panic. For our behavioral health field, these emotional states can have very detrimental consequences.

Ron Manderscheid is the executive director of the National Association of County Behavioral Health and Developmental Disability Directors and the National Association for Rural Mental Health and an adjunct professor in the John Hopkins Bloomberg School of Public Health.

We want to hear from YOU

Tell us your good news. Be sure to let us know if an aspect of county government “made news” recently in your county. Or if your county officials or staff get an award, appointment or pat on the back. We want the whole state to know about your successes and accomplishments. Contact Communications Director Christy L. Smith at csmith@arcounties.org.

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