A Railroad Employer’s COVID-19 Manual-March 19, 2020

By: Paula E. Pitrak

Congress has implemented a three-phase process in response to the coronavirus pandemic—specifically, related to the Coronavirus Disease 2019 (COVID-19), a respiratory disease caused by the SARS-CoV-2 virus. Phase 1, signed into law on March 6, 2020, focused on coronavirus vaccine research and development, and on March 18, 2020, Congress passed Phase 2, the Families First Coronavirus Response Act, focusing on paid leave and unemployment benefits for employees and families. Phase 3, currently being negotiated, will focus on a massive economic stimulus package.

The Families First Coronavirus Response Act goes in effect on April 1, 2020 (not later than 15 days after its enactment) and sunsets on December 31, 2020.

The Act’s Division C is entitled “Emergency Family and Medical Leave Expansion Act” and expands the FMLA to include public health emergency leave and requires private sector employers with fewer than 500 employees and government employers to provide eligible employees with up to 12 weeks of paid family and medical leave (FMLA).

The Act’s Division E is entitled “Emergency Paid Sick Leave Act” that requires private sector employers with fewer than 500 employees and government employers to provide eligible employees with two-weeks of paid sick leave (80 hours for full-time employees and typical number of hours over two-weeks for part-time employees).

Below are excerpts from the Summary of Latest Congressional Action on Coronavirus Response, as prepared by the U.S. Chamber of Commerce and accessible at the above link.

Unemployment Compensation:  

• The bill gives state governments flexibility with respect to waiting periods and in interpreting the “able, available and actively looking” test for Unemployment Compensation (UC) eligibility. That said, it is important to emphasize that UC is not sick leave.
• Provides an additional $1 billion for state unemployment programs. Authorizes extended unemployment benefits (beyond the usual 26 weeks), fully funded by the federal government, for states that experience a spike in unemployment.

Paid Sick Leave:

• Requires private sector employers with fewer than 500 employees and government employers to provide eligible employees with two-weeks of paid sick leave (80 hours for full-time employees and typical number of hours over two-weeks for part-time employees).
• Eligibility: The paid sick leave is available to any employee without regard to duration of employment if they are unable to work or telework because they are:
  • Subject to a government quarantine or isolation order related to COVID-19,
  • Have been advised by health provider to self-quarantine due to COVID-19,
  • Experiencing symptoms of COVID-19 and seeking medical diagnosis,
  • Caring for an individual subject to quarantine order or self-quarantine,
  • Caring for children if schools are closed or their caregiver is unavailable because of a public health emergency, or
  • Experiencing substantially similar conditions as specified by the Secretary of Health and Human Services.
• Employers of employees who are healthcare providers or emergency responders may elect to exclude such employees from the paid sick leave.
• Rate of Pay: Employees are compensated at the higher of their regular rate, the federal minimum wage, or the local minimum wage, but not to exceed $511 per day and $5,110 in the aggregate. However, if the employee is absent to care for a sick family member, a child unable to attend school, or because they meet the criteria for similar conditions they are compensated at 2/3 of the rate they would otherwise receive, but not to exceed $200 per day and $2,000 in the aggregate. (This conforms the pay to the amount of the available tax credit.)
• Small Business and Other Exemptions: The Secretary of Labor is authorized to issue regulations to exempt health care providers and emergency responders from the definition of employer. In addition, the Secretary may exempt small businesses with fewer than 50 employees from the requirement to offer leave to care for a child when a school is closed when the imposition of paid sick leave would jeopardize the viability of the business as an ongoing concern.
• Relationship to Existing Programs: This paid sick leave is in addition to whatever sick leave is already offered by the employer (including subject to state or local requirements). Effective Dates: The provision takes effect not later than 15 days after enactment of the bill and sunsets on December 31, 2020.
• Funding: Each quarter, private sector employers subject to the requirement are entitled to a fully refundable tax credit equal to 100% of the qualified sick leave wages paid by the employer. Qualified sick leave wages are capped at $511 per day ($200 per day if the leave is for caring for a family member) and 10 days. The tax credit is applied against employer Social Security taxes, but employers are reimbursed if their costs for qualified sick leave exceed the taxes they would owe. The Treasury Secretary is provided with regulatory authority intended to help with cash flow issues, for example by waiving penalties on failing to deposit payroll taxes in anticipation of the credit.
• Additional Credit for Health Plan Expenses: The amount of the tax credit is further increased by the amount of the expenses of the employer’s health care plan allocable to the qualified sick leave. This allows the employer to seek reimbursement for the cost of continuing to provide health insurance while the employee is on sick leave.
• Tax on Employers: Paid sick leave is not considered wages for Social Security tax purposes and for half of the Hospital Insurance Tax, for the other half of the Hospital Insurance Tax, the applicable tax credit is increased to cover the cost of the payroll tax.
• Self-Employed: There is a similar tax credit against self-employment taxes for individuals who are self-employed but would otherwise qualify for paid sick leave if they were an employee of an employer.

Paid Family and Medical Leave (paid FMLA):

• With certain possible exceptions (see below), requires private sector employers with fewer than 500 employees and government employers to provide employees with up to 12 weeks of paid family and medical leave (paid FMLA).
• Eligibility: The paid family and medical leave is available to any employee who has been employed for at least 30 days if they are out in order to:
  • Care for children if schools are closed or their daycare is unavailable because of a public health emergency and they are unable to work or telework.
• Rate of Pay: After 10 days, during which time the employee can take unpaid or paid leave (if available), employees are compensated at 2/3 of their regular rate. Paid leave under this requirement shall not exceed $200 per day and $10,000 in the aggregate. (This conforms to the amount of the tax credit.)
• Small Business and Other Exemptions: The Secretary of Labor is authorized to exempt health care providers and emergency responders and small businesses with fewer than 50 employees if the requirement would jeopardize the business as an ongoing concern. The requirements to restore the employee to their position after the paid leave is taken do not apply to businesses with fewer than 25 employees if the position no longer exists because of the public health emergency (provided the employer takes certain actions to try and assist the employee). Employers with less than 50 employees are exempt from civil actions brought by employees for violations of this section. Employers of employees who are healthcare providers or emergency responders may elect to exclude such employees from the paid FMLA.
• Effective Dates: The provision takes effect not later than 15 days after enactment of the bill and sunsets on December 31, 2020. Funding: Each quarter, private sector employers subject to the requirement are entitled to a fully refundable tax credit equal to 100% of the qualified paid FMLA wages paid by the employer. Qualified paid FMLA wages are capped at $200 per day and $10,000 overall. The tax credit is applied against employer Social Security taxes, but employers are reimbursed if their costs for qualified paid FMLA exceed the taxes they would owe. The Treasury Secretary is provided with regulatory authority intended to help with cash flow issues, for example by waiving penalties on failing to deposit payroll taxes in anticipation of the credit.
• Additional Credit for Health Plan Expenses: The amount of the tax credit is further increased by the amount of the expenses of the employer’s health care plan allocable to the qualified sick leave. This allows the employer to seek reimbursement for the cost of continuing to provide health insurance while the employee is on sick leave.
• Tax on Employers: Paid FMLA is not considered wages for Social Security tax purposes and for half of the Hospital Insurance Tax, for the other half of the Hospital Insurance Tax, the applicable tax credit is increased to cover the cost of the payroll tax.
• Self-Employed: There is a similar tax credit against self-employment taxes for individuals who are self-employed but would otherwise qualify for paid FMLA if they were an employee of an employer, but leave would be capped at 50 days.

The Centers for Disease Control and Prevention, CDC, has issued Interim Guidance for Businesses and Employers and stressed for employers to use only the interim guidance described by the CDC to determine risk of COVID-19. Similarly, the EEOC has published What You Should Know About the ADA, the Rehabilitation Act & COVID-19 to provide guidance consistent with workplace protections and rules to help employers navigate the impact of the pandemic on workplaces. OSHA has also issued Guidance on Preparing Workplaces for COVID-19 focusing on the need for employers to implement engineering, administrative, and work practice controls and personal protective equipment (PPE), as well as considerations for doing so.

The Cybersecurity and Infrastructure Security Agency (CISA) issued a Memorandum Identifying Critical Infrastructure During COVID-19 in which it developed an initial list of “Essential Critical Infrastructure Workers” to help State and local officials as they work to protect their communities, while ensuring continuity of functions critical to public health and safety, as well as economic and national security. The List’s Section on Transportation and Logistics identifies “workers responsible for operating dispatching passenger, commuter and freight trains and maintaining rail infrastructure and equipment.”

For employers in the rail industry, you should thoroughly review and comply with the federal agencies’ guidelines when establishing workplace policies related to COVID-19 and should consider the following topics in response to this pandemic:

• Options for avoiding spread of the virus at the workplace;
• Medical inquiries regarding COVID-19 and ADA compliance;
• Temporary furloughs;
• Layoffs and shutdowns and applicability of the WARN Act;
• Notification to workforce of potential COVID-19 exposure;
• Applicability of State laws, particularly those related to sick leave; and
• Open communication with union representatives.

For more information regarding your company’s compliance with the Emergency Family and Medical Leave Expansion Act, the Emergency Paid Sick Leave Act, and other applicable federal, state, and local employment laws regarding COVID-19, contact Fletcher & Sippel’s Labor and Employment Group.

Update to A Railroad Employer’s COVID-19 Manual – March 26, 2020

By: Paula E. Pitrak

The Families First Coronavirus Response Act (FFCRA) provided sick leave and expanded the breadth of paid family and medical leave for COVID-related reasons, and it created the refundable paid sick leave credit and the paid child-care leave credit for eligible employers. Eligible employers are businesses with fewer than 500 employees, with few exceptions.

The FFCRA authorizes the Secretary of Labor to issue regulations for good cause to exclude certain health care providers and emergency responders from the definition of eligible employee and to exempt certain small businesses with fewer than 50 employees from the Emergency Paid Sick Leave Act or Emergency Family and Medical Leave Expansion Act when enforcement would jeopardize the viability of the business as an ongoing concern.

On March 20, 2020, the Department of Labor, Internal Revenue Service, and Treasury Department announced their joint Plan to Implement Coronavirus-Related Paid Leave for Workers and Tax Credits for Small and Midsize Businesses to Swiftly Recover The Cost of Providing Coronavirus-Related Leave so “that small and midsize employers can begin taking advantage of two new refundable payroll tax credits, designed to immediately and fully reimburse them, dollar-for-dollar, and the cost of providing Coronavirus-related leave to their employees. . . . All American businesses with fewer than 500 employees will be provided funds to provide employees with paid, leave, either for the employee’s own health needs or to care for family members.”

Below are excerpts from the agencies’ joint guidance, accessible at the above link.

Key Takeaways

• Paid Sick Leave for Workers
  For COVID-19 related reasons, employees receive up to 80 hours of paid sick leave and expanded paid child care leave when employees’ children’s schools are closed or child care providers are unavailable.
• Complete Coverage
  Employers receive 100% reimbursement for paid leave pursuant to the act.
  • Health insurance costs are also included in the credit.
  • Employers face no payroll tax liability.
  • Self-employed individuals receive an equivalent credit.
• Fast Funds
  Reimbursement will be quick and easy to obtain.
  • An immediate dollar-for-dollar tax offset against payroll taxes will be provided
  • Where a refund is owed, the IRS will send the refund as quickly as possible.
• Small Business Protection
  Employers with fewer than 50 employees are eligible for an exemption from the requirements to provide leave to care for a child whose school is closed or child care is unavailable in cases where the viability of the business is threatened.
• Easing Compliance
  • Requirements subject to 30-day non-enforcement period for good faith compliance efforts.

The Wage and Hour Division of the Department of Labor has also issued helpful fact sheets and questions-and-answers regarding the pandemic available at the Division’s COVID-19 and the American Workplace webpage. It also has made publicly available a model FFCRA Poster for federal (accessible via link) and non-federal employers. It’s Field Assistance Bulletin No. 2020-1 further explains the Department will not bring enforcement actions against any public or private employer for violations of the Act occurring within 30 days of the enactment of the FFCRA, i.e. March 18 through April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the Act.

For more information regarding your company’s compliance with the FFCRA and other applicable federal, state, and local employment laws regarding COVID-19, contact Fletcher & Sippel’s Labor & Employment Group.

Update to A Railroad Employer’s COVID-19 Manual – April 1, 2020

By: Paula E. Pitrak

With the Families First Coronavirus Response Act (“FFCRA”) and Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) in effect, the Department of Labor (“DOL”), Railroad Retirement Board (“RRB”), and Federal Railroad Administration (“FRA”) continue to offer additional guidance on paid sick leave, expanded family and medical leave, railroad unemployment and sickness benefits, and Part 219 drug and alcohol testing.

Department of Labor

The DOL continues to update its Coronavirus Resources page with guidance on workplace safety; wages, hours and leave; and unemployment insurance flexibilities. The Wage and Hour Division (WHD)’s COVID-19 and the American Workplace page sets forth fact sheets, comprehensive Q&As, posters (available in Spanish and English), and Field Assistance Bulletin No. 2020-1 regarding the temporary non-enforcement period applicable to the FFCRA.

The WHD’s Families First Coronavirus Response Act: Questions and Answers provides answers to fifty-nine common questions regarding paid sick leave and expanded family and medical leave. The Q&A offers guidance on intermittent leave, concurrent use of leave, calculating paid sick leave or expanded family and medical leave, interplay between paid sick leave and expanded family and medical leave, important distinctions between the two types of leave, recording requirements, amount of leave employers are permitted to claim as a tax credit, and use of employer’s preexisting leave entitlements.

Railroad Retirement Board

In response to the CARES Act, the Railroad Retirement Board published News Release “Coronavirus Aid, Relief, and Economic Security Act.” This Release explains how the CARES Act boosts unemployment and sickness benefits for railroad workers impacted by the pandemic by temporarily eliminated the 1-week waiting period required before railroad workers can receive unemployment or sickness benefits, increasing the amount of the unemployment benefit available, extending unemployment benefits to rail workers who received unemployment benefits from July 1, 2019 to July 30, 2020, and explaining the RRB will also pay sickness benefits and, in some cases, unemployment benefits, to rail workers who have tested positive for COVID-19 or have been subject to a quarantine order.

The RRB also addresses questions regarding those situations in which benefits are payable during the COVID-19 outbreak in its Q&A: Unemployment and Sickness Benefit Flexibilities Under the Railroad Unemployment Insurance Act (RUIA) during the COVID-19 Virus Outbreak.

Federal Railroad Administration

On March 30, 2020, the FRA replied to the joint request of the Association of American Railroads, the American Short Line and Regional Railroad Association, and the American Public Transportation Association for temporary emergency waiver relief from certain FRA alcohol and drug testing requirements at 49 C.F.R. Part 219 (Part 219) due to the COVID-19 pandemic.

In short, the FRA will not look favorably on a railroad’s blanket suspension of Part 219 random testing during the pandemic. Rather, the FRA will be looking for compliance with annual percentage requirements. While performing audits, the FRA will exercise reasonableness when determining whether testing was not done for legitimate reasons. Railroads must use common sense when determining testing refusals or excusals and must document everything to provide sufficient explanation for their testing audits.

For more information regarding your company’s compliance with the FFCRA, the CARES Act, and other applicable federal, state, and local employment laws regarding COVID-19, contact Fletcher & Sippel’s Labor and Employment Group.

Update to A Railroad Employer’s COVID-19 Manual – April 9, 2020

By: Paula E. Pitrak

 Within the first two weeks of the Families First Coronavirus Response Act (FFCRA) being in effect, certain federal agencies published temporary or interim final rules regarding sick leave and expanded family and medical leave or railroad unemployment and sickness benefits, while others continued to publish and revise their guidance on navigating the coronavirus pandemic. 

 Department of Labor

 Wage and Hour Division

 On April 6, 2020, Department of Labor’s Wage and Hour Division (WHD) published a Temporary Rule—effective April 2, 2020— to implement public health emergency leave under Title I of the Family and Medical Leave Act (FMLA), and emergency paid sick leave to assist working families facing public health emergencies arising out of Coronavirus Disease 2019 (COVID-19) global pandemic. The temporary regulations appear in new Part 826 of Title 29 of the Code of Federal Regulations and discuss a wide variety of topics—including return to work, record keeping, health care coverage, documentation of need for leave, employee notice of need for leave, and other aspects of the FFCRA. The WDH has also posted a webinar, The Families First Coronavirus Response Act (FFCRA), and made available the webinar slides outlining and explaining sick leave and expanded family and medical leave related to COVID-19 under the FFCRA.

 Signaling strong enforcement efforts to assure work-related benefits and rights related to COVID-19 paid sick leave and expanded family and medical law, the Wage and Hour Division (WHD) published a news release U.S. Department of Labor’s Wage and Hour Division Announces Job Openings announcing the hiring of 45 additional investigators to conduct investigations to determine employers’ compliance with applicable federal labor laws.

 Occupational Safety and Health Administration

OSHA has issued Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19)–explaining that COVID-19 is a recordable illness; that employers are responsible for recording cases of COVID-19 in certain cases; and that OSHA will not enforce its recordkeeping requirements to require these employers to make work-relatedness determinations for COVID-19 cases, except where: (1) There is objective evidence that a COVID-19 case may be work-related; and (2) The evidence was reasonably available to the employer.

The Department of Labor also put forth a News Release announcing that the Occupational Safety and Health Administration (OSHA) issued a new poster Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus (available in English and Spanish) aimed at reducing workplace exposure to coronavirus and highlighting 10 infection prevention measures every employer can implement to protect workers’ safety and health. The Department has also issued new release: U.S. Department of Labor Reminds Employers That They Cannot Retaliate,  reminding employers that it is illegal to retaliate against workers because they report unsafe and unhealthful working conditions during the coronavirus pandemic. Acts of retaliation can include terminations, demotions, denials of overtime or promotion, or reductions in pay or hours.

 In addition OSHA’s COVID-19 webpage continues to update its available resources—which include Guidance on Preparing Workplaces for COVID-19 and Worker Exposure Risk to COVID-19 (available in English and Spanish).

 Employers should consider whether their efforts meet these guidelines.

 Railroad Retirement Board

 On April 7, 2020, the Railroad Retirement Board (RRB) published an Interim Final Rule—effective April 3, 2020—amending the definition of “available for work” in its regulations in order to facilitate payment of unemployment benefits to railroad employees who are out of work due to the impact of the COVID-19 outbreak and subsequent declaration of a national emergency. The RRB amended title 20, chapter II, subchapter C, part 327 of the Code of Federal Regulations by adding paragraph (d) of Section 327.5 to read as follows:

(d) Deemed available for work. During the period extending from March 1, 2020 until December 31, 2020, a claimant will be deemed to be available for work during any period for which he or she is subject to a state or local order related to the public health emergency declared effective March 1, 2020 preventing him or her from reporting to work.

 The RRB also revised its Q&E Unemployment and Sickness Benefit Flexibilities Under the Railroad Unemployment Insurance Act (RUIA) during the COVID-19 Virus Outbreak, addressing questions regarding those situations in which benefits are payable during the COVID-19 outbreak.

 Centers for Disease Control and Prevention

 The Centers for Disease Control and Prevention’s (CDC) COVID-19 webpage continues to update its guidance and standards, and it recently issued railroad-specific fact sheets, What Rail Transit Operators Need to Know About COVID-19 and What Transit Maintenance Workers Need to Know About COVID-19, setting forth helpful guidance on the transit vehicle surfaces that should be cleaned, the best cleaning chemicals, and recommended steps for employers. 

Department of Transportation 

Federal Railroad Administration 

The FRA issued Safety Advisory 2020-01: Safety Precautions Related to Coronavirus Disease 2019 (COVID-19), encouraging railroads, their employees, and contractors to review and follow all applicable guidance available related to COVID–19, including the best practices identified in the President’s Coronavirus Guidelines for America—30 Days to Slow the Spread of Coronavirus (COVID–19), the Centers for Disease Control and Prevention’s (CDC) COVID–19 guidelines, and the Occupational Safety and Health Administration’s (OSHA) Guidance on Preparing Workplaces for COVID–19.

On April 10, 2020, the FRA issued its Reply Letter to the joint request of the Association of American Railroads, the American Short Line and Regional Railroad Association, and the American Public Transportation Association for temporary emergency relief from Title 49 Code of Federal Regulations (CFR) §240.127, Criteria for Examining Skill Performance, due to the public health emergency concerning the coronavirus disease 2019 (COVID-19). The FRA granted temporary relief from the requirements of § 240.127(c)(5), and will permit railroads to use event recorders to conduct the skill performance examination of candidates for recertification under Part 240. Relief is limited to the method of conducting the skill performance examination in paragraph (c)(5) of § 240.127 and is subject to certain limitations. 

Internal Revenue Service

 The Internal Revenue Service (IRS) has established its Coronavirus Tax Relief page to help taxpayers, businesses and others affected by the coronavirus. In addition to news releases, statements, answers to frequently asked questions, and guidance notices, the IRS released Form 7200 and Instructions for Form 7200 for advance payment of employer credits due to COVID-19 related sick or family leave under the FFCRA.

 In its publication Notice 2020-21, Effective Date for Employment Tax Credits Under the Families First Coronavirus Response Act, the IRS explained the FFCRA’s refundable tax credits for employers of qualified sick leave wages and qualified family leave wages will apply for the period beginning on April 1, 2020 and ending on December 31, 2020.

 Additionally, in its Press Release: Treasury and IRS Release FAQs to Help Small and Midsize Businesses Navigate Paid and Sick Family Leave Tax Credits, the Department of Treasury announced the COVID-19-Related Tax Credits for Required Paid Leave Provided by Small and Midsize Businesses FAQs that offer additional information on refundable tax credits under FFCRA.

 Equal Employment Opportunity Commission

 The Equal Employment Opportunity Commission (EEOC) also has a dedicated Coronavirus and COVID-19 page to consolidate relevant information to answer questions from the public about the EEO laws and COVID-19, and it posted a pre-recorded webinar addressing specific questions related to the pandemic—which it made available at the following links: YouTube Webinar, COVID-19 “Ask the EEOC” and Transcript of March 27, 2020 Outreach Webinar. The EEOC continues to revise its guidance in Pandemic Preparedness in the Workplace and the Americans with Disabilities Act for information about the ADA and pandemic planning in the workplace.

 For more information regarding your company’s compliance with the FFCRA, the CARES Act, and other applicable federal, state, and local employment laws regarding COVID-19, contact Fletcher & Sippel’s Labor & Employment Group.

Update to Railroad Employer’s COVID-19 Manual – April 21, 2020

By: Paula E. Pitrak

On April 20, 2020, the Department of Labor’s Wage and Hour Division announced the expiration of the Families First Coronavirus Response Act’s (“FFCRA”) temporary non-enforcement period, and the DOL’s Occupational Safety and Health Administration—among other federal and state agencies—has dramatically expanded its outreach effort and resources to further assist America’s workforce with navigating this pandemic.

Department of Labor

Wage and Hour Division

In announcing the end of the FFCRA’s non-enforcement period, the WHD issued a News Release explaining its tireless efforts to answer the public’s questions and its intention to continue offering extensive guidance and educational outreach efforts. According to WHD Administrator Cheryl Stanton, it has “taken hundreds of complaints and [is] working to resolve them as soon as possible.” Employers should take heed of the WHD’s guidance, new releases, and posters (now available in eleven languages) and continue referencing the WHD’s Coronavirus Resources page for questions on compliance with the FFCRA and COVID-19’s effects on wages and hours worked under the Fair Labor Standards Act and job-protected leave under the Family and Medical Leave Act.

Occupational Safety and Health Administration

OSHA has dramatically expanded its resources in the last two weeks by releasing enforcement memoranda that take immediate effect, standards, and other compliance assistance efforts to keep American workers safe during the pandemic.

Specifically, on April 10, 2020, OSHA issued Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19)—explaining that COVID-19 is a recordable illness under OSHA’s recordingkeeping requirements but, in areas where there is ongoing community transmission, employers other than those in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting and law enforcement services), and correctional institutions may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work. Accordingly, until further notice, OSHA explained it will not enforce its recordkeeping requirements to require these employers to make work-relatedness determinations for COVID-19 cases, except where: (1) There is objective evidence that a COVID-19 case may be work-related; and (2) The evidence was reasonably available to the employer.

On April 13, 2020, OSHA issued its Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19)—providing instructions and guidance to Area Offices and compliance safety and health officers (CSHOs) for handling COVID-19-related complaints, referrals, and severe illness reports. In addition to prior COVID-19 related enforcement memoranda, the enforcement memorandum also includes the following four attachments: 1) special enforcement procedures; 2) sample employer letter for COVID-19 activities; 3) sample hazard alert letter; and 4) sample alleged violation description for a citation under the general duty clause, Section 5(a)(1), of the Occupational Safety and Health (OSH) Act. In most cases, OSHA Area Offices should process complaints from non-healthcare and non-emergency response establishments as “non-formal phone/fax,” following the non-formal complaint and referral procedures in the Field Operations Manual. Railroad employers should reference this enforcement memorandum and its attachments for potentially applicable standards and other important information.

In addition, it published OSHA Fact Sheet: Protecting Workers During a Pandemic—setting forth in part guidance on what information employers should ensure its employees understand, control measures, and risk communication. OSHA’s COVID-19 Hazard Recognition page further explains the four risk exposure levels: very high, high, medium, and lower risk, and sets forth a non-exhaustive list of specific job duties that may affect workers’ exposure risk levels.

On April 16, 2020, OSHA issued another enforcement memorandum: Discretion in Enforcement when Considering an Employer’s Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic—explaining that, in instances where an employer is unable to comply with OSHA-mandated training, audit, assessment, inspection, or testing requirements because local authorities required the workplace to close, employers should demonstrate a good faith attempt to meet the applicable requirements as soon as possible following the re-opening of the workplace. OSHA further sets forth its intended assessment of employers when determining an employer’s efforts to comply with required standards during the pandemic and issuance of citations.

On its COVID-19 Standards page, OSHA highlights its standards and directives that may apply to worker exposure to the novel coronavirus, SARS-CoV-2, that causes Coronavirus Disease 2019 (COVID-19). Importantly, OSHA sets forth a reminder that there are 28 OSHA-approved State Plans—which are required to have standards and enforcement programs that are at least as effective as OSHA’s and may have different or more stringent requirements. Employers that reside in a state with an OSHA-approved State Plan should review its State OSHA’s policies on the pandemic to ensure compliance.

Railroad employers with additional questions should reference OSHA’s Help for Employers page.

Centers for Disease Control and Prevention

The CDC recently issued Interim Guidance for Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19—explaining how critical infrastructure workers may be permitted to continue work following potential exposure, provided they remain asymptomatic and additional precautions are implemented to protect them and the community. Railroads have been deemed critical infrastructure, so they are encouraged to implement the CDC’s interim guidance to help prevent and slow the spread of COVID-19 in the workplace.

Federal Railroad Administration

The Department of Transportation’s Coronavirus (COVID-19) Information from the FRA page sets forth the FRA’s COVID-19 information, including its responses to certain emergency waiver requests and position statements.

On April 10, 2020, the FRA issued its Reply Letter to the request of SMART Transportation Division and Brotherhood of Locomotive Engineers and Trainmen seeking an emergency order “to standardize and define the best protocols across the [railroad] industry for mitigation of the spread of the virus and the protection of both passengers and employees” and to ensure railroads maintain sufficient staffing levels for the duration of the COVID-19 public health emergency. The FRA responded that, while it believes many safety precautions included in the petitions could constitute best practices that should be applied in the railroad industry, FRA does not believe that an emergency order is justified.

The FRA explained that, while COVID-19 presents challenges to ensure that railroad employees and passengers are protected from the spread of the virus, those challenges are not unique to the railroad industry, and thus not the type of rail safety issue where FRA would typically exercise its emergency order authority. In short, the FRA “stands ready to work with both railroads and railroad employees to ensure the continuity of railroad operations and the safety and health of railroad employees and the traveling public during this critical time.”

On April 13, 2020, it issued FRA Position on the Reportability of COVID-19 Employee Illnesses Under 49 CFR Part 225—stating that the FRA will exercise enforcement discretion under Part 225 and will not require the reporting of any confirmed case of COVID-19 where there is no reasonably available, objective evidence that the confirmed case resulted from a work-related exposure.

Equal Employment Opportunity Commission

The EEOC continues to update its technical assistance questions and answers: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. As recent as April 17, 2020, the EEOC updated this guidance to include information on navigating reasonable accommodations; pandemic-related harassment due to national origin, race, or other protected characteristics; furloughs and layoffs; and return to work during the COVID-19 pandemic.

For more information regarding your company’s compliance with the FFCRA, the CARES Act, and other applicable federal, state, and local employment laws regarding COVID-19, contact Fletcher & Sippel’s Labor & Employment Group.

Update to Railroad Employer’s COVID-19 Manual – April 29, 2020

By: Paula E. Pitrak

Congress and the Small Business Administration

On April 24, 2020, the Paycheck Protection Program and Health Care Enhancement Act, phase four of the Congressional response to COVID-19, was signed into law to enhance funding for small business loans, health-care providers, and COVID-19 testing. Specifically, the Act’s Division A provides additional lending authority for certain Small Business Administration (SBA) programs, and its Division B provides supplemental appropriations for the Department of Health and Human Services (HHS) and the SBA that is designated as emergency spending—exempt from discretionary spending limits.

In its continued efforts, the SBA has released a fourth Interim Final Rule, and on April 26, 2020, in consultation with the Department of Treasury, it issued additional implementation guidance, Paycheck Protection Program Loans: Frequently Asked Questions (FAQs) that should be consulted by borrowers or lenders of the PPP.

Congress has begun alluding to phase 5 legislation, but no draft bill has been introduced in the House or Senate—stay tuned!

Federal Railroad Administration

 On April 21, 2020, the FRA issued its Response to Comments in FRA-2020-0002 from Labor Organizations. In responding to a letter from twelve unions and their comments on waiver petitions submitted to the emergency relief docket (ERD), the FRA concluded that no change to the regulatory relief granted in response to the waiver petitions is yet required.

Specifically, the FRA denied the Labor Organizations’ requests that “FRA make clear that a railroad cannot conclude that it has a workforce shortage and utilize the waiver relief unless it has offered furloughed employees the opportunity to fill any shortfalls and that it consider this requirement to be an amendment to all waivers granted contingent on workforce shortages.” While recognizing the Labor Organizations’ concerns, the FRA asserted that it “has no legal authority to require railroads to recall personnel from furlough to fill workforce shortages caused by COVID-19.”

 Reference the FRA’s webpage, Coronavirus (COVID-19) Information from the FRA, for summaries of railroad use of emergency relief FRA granted March 25 and March 30, 2020 and other FRA COVID-19 information.

Railroad Retirement Board

 On April 24, 2020, the RRB updated its Unemployment and Sickness Benefits Flexibilities Under the Railroad Unemployment Insurance Act (RUIA) during the COVID-19 Virus Outbreak—providing answers to two additional questions regarding the CARES Act’s temporary federal program called Pandemic Unemployment Assistance (PUA), which is administered by individual states, not the RRB, and employee eligibility for PUA in the event of denial of or ineligibility for RUIA unemployment benefits.

Equal Employment Opportunity Commission

On April 23, 2020, the EEOC updated its technical assistance questions and answers: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, to provide additional guidance on disability-related inquiries and medical exams. Specifically, at A.6, the EEOC makes clear an employer’s ability to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. Employer-administered COVID-19 testing is subject to ADA standards that any mandatory medical test of employee be job-related and consistent with business necessity. The EEOC reminded employers of ensuring accurate and reliable tests and urged the continuance of employee observation of infection control practices, such as social distancing, regular handwashing, and other measures.

For more information regarding your company’s compliance with the FFCRA, the CARES Act, and other applicable federal, state, and local employment laws regarding COVID-19, contact Fletcher & Sippel’s Labor & Employment Group.

Update to Railroad Employer’s COVID-19 Manual – May 8, 2020

By: Paula E. Pitrak

Railroad Retirement Board

On May 1, 2020, the RRB updated its Unemployment and Sickness Benefits Flexibilities Under the Railroad Unemployment Insurance Act (RUIA) during the COVID-19 Virus Outbreak—adding questions and answers related to the RRB’s process for determining employee eligibility for unemployment insurance benefits and sickness benefits and related to the relevant provisions of the CARES Act. In this updated guidance, the RRB explained that where an employee chooses to participate in a COVID-19 negotiated plan that includes a period of furlough, rather than be subject to an employer-imposed furlough, the furlough under the negotiated plan will be considered to be an involuntary furlough for purposes of determining eligibility for UI benefits.

Equal Employment Opportunity Commission

On May 5, 2020, the EEOC expanded its technical assistance questions and answers: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws—providing information about the accommodation of employees with underlying medical conditions at questions and answers, G.3, G.4., and G.5. Specifically, the EEOC addresses the direct threat to self that an employer would have to meet to exclude someone from the workplace due to a CDC-identified underlying medical condition.

Department of Labor

Occupational Safety and Health Administration

On May 4, 2020, the Department of Labor issued a News Release announcing that OSHA has translated and published its “Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus” poster in 11 additional languages—all of which are accessible via the above link.

In addition to its agency guidance, OSHA’s COVID-19 Response Summary page provides a daily summary of whistleblower complaint and enforcement data. As of May 6, 2020, the total number of whistleblower complaints filed was 1,036—284 of which were screened and administratively closed and 81 of which were docketed for investigation.

Wage and Hour Division

Since the end of the temporary non-enforcement of paid leave protections under the Families First Coronavirus Response Act, the WHD has investigated and ordered two companies to pay back wages after denying paid sick leave to workers whose doctor ordered coronavirus quarantine. In News Release: Tucson Arizona, Company to Pay Back Wages After Denying Paid Sick Leave to Worker Whose Doctor Ordered Coronavirus Quarantine, Director Eric Murphy of the WHD’s Phoenix District made clear “[t]his case should serve as a signal to others that the U.S. Department of Labor is working to protect employee rights during the coronavirus pandemic.” For more information regarding these two investigations, visit the WHD’s News Releases page.

Internal Revenue Service

On May 7, 2020, the IRS again updated its fact sheet: New Employee Retention Credit helps employers keep employees on payroll—explaining employer eligibility, amount of credit, qualified wages, how to claim the credit, and recordkeeping for claim substantiation. The IRS continues to expand its FAQs: Employee Retention Credit under the CARES Act and makes clear the FAQ is not part of the Internal Revenue Bulleting, and therefore, may not be relied upon as legal authority in support of a legal argument in a court case. Along with its tax regulations, the IRS Guidance page offers access to the Internal Revenue Bulletins.

State Laws

In addition to state WARN laws (enacted in California, Illinois, Maryland, New Jersey, New York, Tennessee and Wisconsin) and state OSHA plans (enacted in 22 states covering both private sector and state and local government workers and 6 state covering only state and local government workers), employers should be sure to keep current on state legislation and gubernatorial executive orders related to civil liability for damages allegedly resulting from COVID-19.

For more information regarding your company’s compliance with the FFCRA, the CARES Act, and other applicable federal, state, and local employment laws regarding COVID-19, contact Fletcher & Sippel’s  Labor & Employment Group.