Updates to COVID-19 Guidelines & FFCRA Benefits

Information sourced from Cook, Little, Rosenblatt & Manson pllc

Here are some of the key takeaways:

• Post-Travel Quarantine: The requirement imposed earlier this month that employees quarantine for 14 days after travel outside of New England has been slightly modified.
  • Now, a 14-day quarantine must still be observed unless the travel outside of New England is “essential travel.
  • Essential travel “includes travel for personal safety, medical care, care of others, parental shared custody, for food, beverage or medication or for work. Employees who travel outside of the New England states for personal or leisure reasons cannot rely on this exemption.”
  • The NH DHHS Travel Guidance (available here) provides some exceptions to the quarantine requirements for “employees that work in the critical infrastructure sectors . . . AND who are deemed essential to the functioning of the business.” However, the guidance cautions that exceptions “are not recommended and should not be standard practice.”

• Training: Employers must provide employees and volunteers with training on the Universal Guidelines, industry-specific guidance, and any other applicable guidance.
• New Definitions: The Universal Guidelines now define more terms. For example, “close contact” is now defined, and follows the definition NH DHHS has been using for contract tracing purposes. This is helpful because it clarifies that brief contact in passing is not considered close contact.
• Chart to Guide Decisions: Employers are now provided with a chart to guide the decision-making process as to whether an employee must have an employee isolate or self-quarantine under various circumstances.
• Symptoms Explained by Chronic Medical Conditions: For the first time, symptoms explained by a chronic medical condition will not trigger testing, isolation, or quarantine requirements.
• Accommodating Employees Who Can’t Wear Masks:  The Universal Guidelines now address how to accommodate employees or volunteers with medical conditions or disabilities that make it “unsafe” (not just uncomfortable) to wear a mask.
• What to do when state guidance conflicts with federal guidance? While these things have always been true, they bear repeating:
  • NH businesses and organizations are to follow both federal and state guidance regarding COVID-19. When the NH Universal Guidelines are more strict than federal guidelines, the NH Universal Guidelines must be followed.
  • NH businesses and organizations must follow both the Universal Guidelines and any applicable industry specific guidelines. New and/or updated industry-specific guidelines for certain industries are now included within the Universal Guidelines. Other NH industry-specific guidelines may be accessed here: Industry Specific Guidance.

• Immediate Action Required: The updated Universal Guidelines are dated August 27 and were posted on Friday, August 28. They went into effect immediately. Please read them as soon as you can and update your businesses’ COVID-19 protocols accordingly. Also, keep checking the Task Force’s website periodically for further updates and changes.

The US DOL has issued guidance addressing when the FFCRA benefit applies to employees needing time away from work due school closures, remote learning, and hybrid schedules.

• Quick FFCRA overview: The Families First Coronavirus Response Act (FFCRA) applies to employers with fewer than 500 employees and provides paid time away from work for employees who are unable to work or telework due to certain COVID-19 related reasons including the need to care for their children when a child’s school is closed due to COVID-19 related reasons. Employees may take up to 12 weeks of paid leave for this reason, paid at 2/3 pay capped at $200/day. The FFCRA provides for tax credits to reimburse employers for the cost of providing the pay during leave. The FFCRA is set to expire on December 31, 2020.
• What does it mean for school to be closed in this era of virtual and hybrid learning? On Thursday, the US DOL answered this question by updating its FFCRA FAQs. In short, the 3 new FAQs added provide the following guidance:
  • Hybrid: If a child’s school is operating on an alternate day schedule or other hybrid schedule, the employee may take FFCRA leave on the days the child is not permitted to attend school if the employee needs to care for the child and there is no other suitable person to do so.
  • Full remote: If a child’s school is on a fully remote learning schedule, the school is closed to the child and the employee therefore is eligible for FFCRA leave to care for the child so long as there is no other suitable person to care for the child.
  • Self-selected remote: An employee may not take FFCRA leave if the school is open and the child could attend in person, but the employee chooses a remote learning option. However, if the employee selected that option because the child is under quarantine or isolation per a government order or healthcare provider advice, the employee would be eligible for up to 2 weeks of FFCRA emergency sick leave to care for the child.

The US DOL FAQs are a helpful read, and they are updated from time to time. You may access all 100 FFCRA FAQs here: FFCRA Questions.  The new return-to-school questions summarized above can be found at FAQ Nos. 98-100.