Navigating the COVID-19 Pandemic: NCASEF Educational Webinars for Franchisees
By Rob Bernstein, Esq., Partner, Laner Muchin, Ltd.
The COVID-19 pandemic has had a far-reaching impact on businesses throughout the United States. Employers are grappling with how to best respond to this pandemic in a way that makes sense from health, safety, and business standpoints.
On March 31, April 2 and April 7, 2020, as NCASEF’s Labor and Employment attorney, I conducted webinars covering a number of important topics for franchisees, including compliance with the newly enacted Families First Coronavirus Response Act (FFCRA), as well as best practices for responding to COVID-19 employment-related issues. Franchisees had the opportunity to have their questions related to these important topics answered as well. Those in attendance asked many excellent questions, which added to the discussion.
Some of the high points covered in the webinars were:
FFCRA Effective Date/Coverage
The FFCRA went into effect on April 1, 2020 and its requirements will expire on December 31, 2020. The FFCRA applies to private sector employers with fewer than 500 employees, which is the vast majority of our franchisee population.
Key Requirements/Provisions Of The FFCRA
- All employees are eligible for up to two weeks of paid or partially paid leave (depending on the Qualifying Reason for the leave) for certain COVID-19 related matters (this is known as Emergency Paid Sick Leave).
- The Family and Medical Leave Act was expanded to provide partially paid leave to employees who must remain home to care for their sick child, if the child’s school or other place of care has been closed, or the child care provider is unavailable due to a COVID-19 related emergency as declared by the federal, state or local government (this is known as Expanded Family Medical Leave).
- Tax credits equal to 100 percent of the FFCRA-mandated paid leave wages paid by an employer each calendar quarter, subject to certain caps. FFCRA-mandated paid leave wages paid by an employer each calendar quarter, subject to certain caps.
- Greater access to unemployment insurance for employees who are off work for certain reasons related to COVID-19. It is important for franchisees to understand their state’s approach toward unemployment benefits.
Employee Request And Employer Response Forms
Franchisees must keep careful records of all documentation as it relates to each employee’s leave request under the FFCRA. After the webinars, we created Employee Request and Employer Response Forms for franchisees to utilize in connection with employee requests for leave under the FFCRA (these have now been sent out to all franchisees). In addition to utilizing these forms, I emphasized the need for franchisees to request that their employees provide supporting documentation for their FFCRA leave requests.
I further emphasized the importance for franchisees to keep copies of the completed Employee Request and Employer Response Forms and the supporting documentation for each employee FFCRA leave request in separate employee files (and if the form and/or supporting documentation contain medical information, in separate confidential medical files).
Additionally, franchisees must keep documentation to show how they determined the amount of Emergency Paid Sick Leave and/or Expanded Family Medical Leave wages paid to employees eligible for the tax credit; documentation to show how the franchisee determined the amount of qualified health plan expenses allocated to wages paid (if applicable to the franchisee) in connection with FFCRA leave requests; and copies of any completed quarterly federal employment tax returns (e.g., Forms 941) and Form 7200 (Advance of Employer Credits Due to COVID-19), and any other filings that the franchisee submitted to the IRS requesting credit. In order to receive the tax credits for the wages they pay for their employees’ leaves under the FFCRA, franchisees must keep all of the previously mentioned documents and records for at least four years after the taxes become due.
Small Business Exemption
Given that many 7-Eleven franchisees have fewer than 50 employees, we spent a good amount of time discussing the small business exemption under the FFCRA. Franchisees with fewer than 50 employees can declare this exemption with respect to leaves related to child care due to school or child care provider closures or unavailability due to COVID-19 (Qualifying Reason No. 5 only) when the imposition of the FFCRA requirements in this regard would jeopardize the viability of the franchisee’s business as a going concern.
A franchisee does not apply for the exemption with the government, but rather declares the exemption by way of the franchisee’s owner or authorized member of management internally documenting in detail which one of the three necessary conditions for claiming the exemption under the Department of Labor’s regulations that the franchisee meets. Franchisees can go to the FFCRA Questions and Answers and/or the Temporary FFCRA Regulations issued by the DOL at www.dol.gov to read more about the details of these three conditions.
The exemption is claimed on an employee-by-employee basis and does not necessarily exempt the franchisee from providing paid leave with respect to Qualifying Reason No. 5 (child care reasons) for all employees. The franchisee must document the facts and circumstances that meet the criteria for each denial of an employee’s FFCRA leave request based on this exemption and keep such records for at least four years. I emphasized that this small business exemption only applies to Qualifying Reason No. 5 (child care rea-sons) and that a franchisee must still provide Emergency Paid Sick Leave for Qualifying Reason Nos. 1 through 4 and 6, even if exempt from doing so for Qualifying Reason No. 5.
Required FFCRA Poster
Franchisees must post the required FFCRA Poster in English and Spanish in a place in each of their stores where they can be easily seen by their employees. Franchisees can go to the Department of Labor’s website at www.dol.gov to get copies of this poster in English and Spanish. To the extent that an employee will not have an opportunity to see the poster because the employee is on a leave of absence or will otherwise be away from the franchisee’s store for an extended period of time (for reasons other than a furlough or lay-off), the franchisee should email or mail the poster to the employee.
Do’s And Don’ts Regarding COVID-19 Employment-Related Issues
I covered some important Do’s and Don’ts for our franchisees as they are operating their day-to-day businesses.
Franchisees have the right to: 1) ask employees if they have a fever, cough, shortness of breath or other symptoms of COVID-19; 2) require employees to inform them if they have been diagnosed with COVID-19, exposed to a person diagnosed with COVID-19, or have traveled to an area with an outbreak of COVID-19; 3) require employees to inform them of out-of-state travel plans; and 4) encourage employees to go to a health care provider to be tested for COVID-19.
Franchisees also have the right to send an employee home from work and prohibit the employee from working if the employee exhibits symptoms of COVID-19 or is diagnosed with COVID-19. Keep in mind that the current Centers for Disease Control and Prevention (CDC) Guidance provides that an employee deemed to be a critical infrastructure worker (employees supporting convenience stores are critical infrastructure workers) or an essential worker under the franchisee’s relevant state of operation may continue to work if they are exposed to a person with COVID-19 so long as the employee is not ex-periencing any symptoms of COVID-19 and so long as the following additional precautions are taken:
- Pre-Screening: Franchisees measure the employee’s temperature and assess symptoms prior to the employee starting work. The CDC further recommends that this occur before the employee enters the store.
- Self-Monitoring: The employee should self-monitor for the development of COVID-19 symptoms.
- Wear a Mask: The employee should wear a facemask while in the workplace for 14 days after the last exposure (franchisees should monitor their state, city and local laws and ordinances regarding the wearing of masks as well).
- Social Distancing: The employee should maintain 6 feet of distance from others in the workplace to the extent work duties permit.
- Disinfect and Clean Workspaces: Franchisees should take steps to ensure that all areas of their stores are routinely cleaned and disinfected, including bathrooms and any common areas.
- Franchisees should carefully consider whether the CDC’s previously mentioned updated Guidance can be practically implemented in their stores, or whether there is another approach that responsibly addresses health and safety issues that is a better fit for their stores.
Franchisees further have the right to: 1) prohibit employees who have experienced symptoms of COVID-19 from returning to work until 72 hours after the employee has recovered—defined as resolution of fever without the use of fever-reducing medicine and improvement of respiratory symptoms (e.g., cough or shortness of breath), and at least 7 days have passed since the employee’s symptoms first appeared; and 2) prohibit employees who have been diagnosed with COVID-19 from returning to work until the employees have been cleared to work by a health care provider.
Franchisees can and should: 1) inform employees who have had prolonged contact with an employee or customer who has been diagnosed with COVID-19 (e.g., being within approximately 6 feet of the employee or cus-tomer for approximately 10 minutes or more) that there is a risk they have been exposed to COVID-19 in the workplace; 2) maintain confidentiality as to the person who may have exposed them (do not disclose the person’s name or any other identifying information about the person); 3) encourage the employees who may have been exposed to self-monitor whether they experience any symptoms of COVID-19; 4) consider increasing cleaning measures in the store to stop the spread; and 5) consider whether to notify the State or local Department of Public Health depending on the seriousness of the situation.
Franchisees should not: 1) discriminate or retaliate against, or harass an employee for COVID-19 related reasons or for seeking benefits under the FFCRA; 2) make medical inquiries of disabled employees to determine whether they have a compromised immune system or have other medical conditions that may make them more susceptible to contract-ing COVID-19; and 3) require employees to get a flu shot or require them to submit to medical testing if they have no symptoms and are not at high risk.
Franchisees asked many excellent questions in the webinars regarding many of the issues addressed in this article, such as the different Qualifying Reasons for leave under the FFCRA, the type of notice and documentation employees need to provide in support of their FFCRA leaves, posting requirements, the small business exemption, and circumstances under which employees can receive unemployment benefits.
While we answered many of these questions in the webinars, we will be drafting a Frequently Asked Questions document that franchisees can have as a further resource as they navigate the FFCRA and related issues. Additionally, to provide additional resources to 7-Eleven franchisees, NCASEF has en-tered into a partnership with Laner Muchin, which provides that our legal team will be available to answer all franchisees’ labor and employment, employee benefits, and immigration questions. Franchisees are encouraged to contact us with questions regarding day-to-day operations and any situations that might arise.