Throughout the COVID-19 pandemic, key employment laws have been updated with new regulations and important changes in employee benefits and rights, spanning health and safety to medical and military leaves and remployment. These are some of the most significant changes that employers should know about.
Occupational Safety and Health Act (OSHA)
The Occupational Safety and Health Act (OSHA) requires employers to keep their workplaces safe for workers in several areas of employee health and safety. OSHA regulations apply to all businesses with even just one employee.
Although the original OSHA standards were written for health care workers and first responders, they are applicable to all businesses that have employees who are exposed to dangerous pathogens or infectious diseases. For example, you must provide personal protection equipment (PPE), including face protection and protective clothing, to employees where they can be exposed to COVID-19 and other workplace hazards.
Family and Medical Leave Act and Sick Leave Benefits During the Coronavirus Pandemic
The Family and Medical Leave Act (FMLA) requires larger employers (those with 50 or more employees) to provide up to 26 weeks of unpaid leave. The leave must be used for the employee’s serious health condition, for the birth of a child, to care for an immediate family member or parent with a serious health condition, or to provide care if a family member must report for active military duty.
Employers are not required to pay employees who are on an FMLA-approved leave (except for the coronavirus paid leave described below), but they must continue the employee’s group health coverage, and the employee must continue to pay their share of premiums. At the end of the leave, the employer must restore the employee to their same or an equivalent position if they return in a timely manner.
Paid Sick Leave Requirement and Tax Credit
The 2020 Families First Coronavirus Response Act requires employers to pay employees sick pay and paid leave for COVID-19-related reasons. Your business can receive tax credits to offset these costs. You must pay employees in these situations:
Employees may take paid time off for up to two weeks, or 80 hours, of paid sick leave at their regular pay rate, if they:
- Are quarantined or on stay-at-home order
- Have COVID-19 symptoms and are seeking a diagnosis
Employees can take paid time off for up to two weeks, or 80 hours, of paid sick leave at two-thirds of their regular rate, if they are:
- Caring for a someone who is quarantined or on stay-at-home order
- Caring for a child whose school or child care location is closed, or if child care is unavailable
More than a dozen states and Washington, D.C., require paid sick leave under some circumstances, and many of these states have temporarily broadened paid sick leave availability.
Additional Paid Leave and Tax Credit
In addition to sick pay discussed above, employers must give employees 10 weeks of paid expanded family and medical leave at two-thirds the regular pay rate, for coronavirus-related reasons. The employee must have been employed at least 30 calendar days.
To offset some of the costs of these new paid leaves, your business may be eligible for a tax credit (different from the one mentioned above). This tax credit is for small and midsize employers (up to 500 employees), and it applies to costs for leaves taken between April 1, 2020, and December 31, 2020.
Paid leave credits have been extended through September 2021 by the American Rescue Plan Act, signed into law in March 2021. These are dollar-for-dollar credits of up to $5,000.
COBRA Insurance for Continued Health Benefits
The Consolidated Omnibus Budget Reconciliation Act of 1974 (COBRA) gives employees the option to continue health benefits with their employer when they are laid off or terminated. If your business has 20 or more employees, and you have health plan coverage, you must offer COBRA to employees if they are let go (except for gross misconduct) or if a reduction in their hours made them ineligible for your health care plan. You must continue their coverage for a limited time, but you don’t have to pay their premium costs.
While employees normally have 60 days to elect coverage and 45 days after electing it to make their first payment, these deadlines have been extended during the COVID-19 outbreak.
ERISA Health and Pension Benefits
ERISA is the Employee Retirement and Income Security Act (1974). If your company has a health plan or a pension/retirement plan for employees, you must comply with ERISA standards to protect plan participants and their beneficiaries, even during COVID-19. This requires plan administrators to:
- Give participants important information about plan benefits
- Set fiduciary responsibility requirements for plan administrators and employers
- Set up grievance and appeals processes
- Give participants the right to sue for benefits and fiduciary breaches
If You Need to Change or Cut Your Health Plan
Employers offer health benefits on a voluntary basis, and federal law doesn’t prevent employers from cutting or reducing benefits. If you need to change the health plan you offer employees as a result of your business being impacted by COVID-19, you must give employees advance notice and information about COBRA coverage if they qualify. Check with your plan administrator to see whether there are restrictions on making plan changes.
The Department of Labor has issued guidance to employers under EBSA Disaster Relief Notice 2020-01 for some ERISA provisions for health plans and retirement plans throughout the coronavirus pandemic The guidelines extend the time frames for participants and beneficiaries to make benefit decisions, and health plan officials have more time to furnish notices and disclosures if they make a good faith effort to provide the documents as soon as possible.
The notice is detailed and includes more guidance on other subjects. Check with your plan administrator to make sure your company complies with these requirements.
You can use the Department of Labor’s Health Benefits Advisor website to see whether you are in compliance with federal laws that apply to your company’s health plan.
USERRA Benefits for Service Members
The Uniformed Services Employment and Reemployment Rights Act (USERRA) guarantees employment and reemployment rights to military members, including National Guard and Reserve units called up for service during the pandemic.
When your business receives written notice of call-up, you must release the employee for this service. When the service member returns from active duty, you must reemploy this person if they:
- Return within five years (cumulative service)
- Return in a timely manner after the end of their service
- Don’t have a disqualifying discharge
The person must return within a specified number of days, depending on their days of military service.
If a service member returns from active duty, you don’t have to rehire them if they would have been laid off or their job were no longer available. If the person may have been exposed to COVID-19, you still must make every effort to qualify them for their proper reemployment. You might need to give this person paid leave, remote work, or another position.
See the Department of Labor’s COVID-19 USERRA Impact fact sheet for more details on employing returning service members.
The Bottom Line
Throughout COVID-19, many employment laws have been affected and changed to help both employers and employees safely weather the pandemic. Health and safety guidelines like OSHA and the Family and Medical Leave Act, as well as retirement and uniformed services benefits, have all been impacted during the coronavirus and are sure to change continually during this unprecedented time. Keep an eye out for more information from the Department of Labor, the IRS, and other federal agencies, and consider working with an employment attorney for additional help with your business’s specific situation.