Families First Coronavirus Response Act (FFCRA)

We hope that you, your employees, and your families are staying safe during the coronavirus pandemic.

The Department of Labor has issued the attached poster regarding EMPLOYEE RIGHTS: Paid Sick Leave and Expanded Family and Medical Leave Under the Families First Coronavirus Response Act (FFCRA). All covered employers under the FFCRA are required to post the Notice in a conspicuous place on their premises by no later than April 1, 2020. An employer may satisfy this posting requirement by emailing or direct mailing this Notice to employees, or by posting this Notice on an employee information portal.

The DOL’s “Frequently Asked Questions” regarding the Notice are available at https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions. In addition, the DOL issued an FAQ on March 27 confirming that employees who request leave under the FFCRA should be provided with the standard FMLA notices that otherwise apply to FMLA requests (“Notice of Eligibility and Rights & Responsibilities” and “Designation Notice”), and employers should track the FMLA time accordingly. (See item 15 in the DOL FAQ: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions )

Please contact us as needed for assistance with any of your employee benefits needs.

We have all been affected by the outbreak of the Coronavirus or COVID-19 which has been designated as a global pandemic by the World Health Organization (WHO). We believe the most reliable information and guidance is available on the following websites: 

CDC COVID-19 Web Page
WHO COVID-19 Web Page

The purpose of our communication is to address some of the insurance and human resource issues that business owners and managers may find helpful.

Business Interruption by Civil Authority and Supply Chain failure

In order for business interruption coverage to respond, there must be actual direct physical damage to property from a covered cause of loss. When civil authority (e.g. federal, state, local) orders a shutdown of public transportation, imposes a curfew, or restricts commerce because of a quarantine due to an epidemic/endemic/pandemic disease, there is no direct physical damage that would trigger coverage. Similarly, if a major supplier can’t provide you with the provisions necessary to run your business because of COVID-19, there is no direct physical damage to property that would trigger coverage. The insurance industry does not currently have a standardized approved policy form to address this exposure.

General Liability 

It seems unlikely that a general liability policy will ever pay a claim arising from the coronavirus. The policyholder would have to be deemed legally liable for spreading the virus and that legal liability would have to qualify as an occurrence, as defined in the policy. If these two conditions aren’t met, there is no coverage.

Workers Compensation

Two tests must be satisfied before any illness or disease, including the Coronavirus, qualifies as occupational and thus compensable under workers’ compensation: The illness or disease must be “occupational”, meaning that it arose out of and was in the course and scope of the employment, and illness or disease must arise out of or be caused by conditions associated to the work. (i.e. Healthcare Worker)

Human Resources

This is a sensitive area and must be handled appropriately. Following are some suggestions for best practices as well as memos, flyers, and articles that we hope you find helpful.

Here are two flyers you may post in your office

Regarding work from home guidelines and managing the spread of the illness, below are two memos for you to customize and use internally. Note the yellow highlighted areas are to be changed based on your organization’s policies and the green highlighted is to be replaced with your company name.

Here is a great article written by the legal experts at Dinsmore “Helping Human Resource Managers Prepare for Coronavirus Pandemic”. This article helps answer some questions around FMLA.

Following are some other topics relative to Human Resources:

• If an employee calls in sick, what questions can I ask? The Americans with Disabilities Act (ADA) prevents employers from asking health-related questions to their employees, unless the employee poses a “direct threat” to other staff or operations. The CDC’s definition of “direct threat” enters into a gray area during times of pandemic. To avoid uncertainties and discrimination, we recommend not asking questions about an employee’s symptoms.
• We do recommend you ask all employees to notify one person in leadership (such as the HR director) if they or a family member has been exposed. This creates a means to self-report where employers do not have to ask questions. If the employee calls in sick, without a self-report of COVID-19, it should be treated as a normal sick day.
• If an employee is in a high-risk category and is advised to miss work, what questions can I ask? There are very few questions you are able to ask about an employee’s medical history. Directly asking an employee about their immune system is a question that likely will force the employee to disclose the existence of a disability and should not be asked to employees. Asking an employee to disclose a medical condition, a pregnancy or their age should also be avoided. This could be deemed as discrimination. It is acceptable to ask employees to self-identify if they fall into this category. Communication may look like this:

“The Centers for Disease Control recommends that all people with a higher risk of illness associated with COVID-19 should avoid their risk of exposure as much as possible. This may include staying home from work or working remotely. The higher risk group includes older adults (those aged 65 years and older) and people with chronic medical conditions (such as heart disease, diabetes or lung disease). If you are in this category and would like to discuss work options, please discuss with your HR director.”

If an employee comes to work with flu-like symptoms, can I send them home?

Yes. You are able to ask employees displaying symptoms of illness to leave the workplace. We recommend that you not ask additional medical questions of that employee, simply ask them to go home.

If an employee is diagnosed with COVID-19, who should know?

A diagnosis of COVID-19 is considered private medical information that should not be shared widely. If an employee self-reports this information, it should be communicated to the leader designated (such as the HR director). This leader will not disclose information to the employee’s supervisor, the employee’s direct reports or any coworkers. It is acceptable to share that an anonymous employee within the office has been diagnosed.

If an employee is diagnosed with COVID-19, what should we do?

The CDC advises that COVID-19 is mainly spread from person-to-person contact. Experts believe that the virus can travel about six feet in distance. Therefore, anyone within six feet of the person diagnosed may have been exposed. Because you’re not able to identify who has been diagnosed, it becomes difficult to communicate who could potentially be exposed. When identifying and communicating potential exposures, we recommend following the same procedures for all staff within the facility where the exposure happened, instead of isolating certain groups of staff.

We emphasize that every insurance policy is different and the aforementioned are general guidelines and ideas that we hope you find helpful. We at Scirocco Group invite your questions and comments and are here to assist you in any way we can.