Coronavirus – What Employers Need To Know
Mon, 06/29/20
By: Dawn Ross
What a week! Last week was really tough as we all struggled to navigate the quickly changing legal landscape, while working from home, often with kids in the background. We have heard from several HR Directors that it feels like they are trying to drink from a fire hose. We are hoping to help by providing a brief summary of what's been going on and how to find the critical information you need.
FFCRA- Sick Leave: The Families First Coronavirus Response Act ("FFCRA") caused lots of headaches last week. Initially, it looked like all California non-essential employees still employed as of April 1, 2020, working for employers with fewer than 500 employees, would be eligible for two weeks of emergency paid sick leave ("EPSL"), because the order applied to all employees "subject to a federal, state, or local quarantine or isolation order related to COVID-19." As the Department of Labor ("DOL") issued further guidance on a daily basis, it became evident that an "isolation" order is not the same as a "shelter-in-place" or "stay at home" order even though they largely have the same impact. DOL's Q&A section is quite helpful and can be found HERE. So the bad news is that the two weeks EPSL will only apply to those who have available work, but are sick, exposed, quarantined, or with a family member who is, or who are caring for a minor child due to school closure or lack of childcare (contact us for a good summary chart), and all of our employees without work will need to go directly to filing for unemployment. The good news is that unemployment benefits are being enhanced by up to $600/week, with no waiting period and extended benefits for up to nine months under the just passed CARES Act, below.
FFCRA- Expanded FMLA: The FFCRA's second component provides what is being referred to as "Expanded" FMLA leave for employees who have available work, but are unable to work (or telework) due to the need to care for a minor child if their school is closed or their childcare provider is unavailable. Expanded FMLA lasts for up to 12 weeks and provides employees with partial wage replacement (up to two weeks EPSL plus $200/day for 10 weeks). It applies to all employers with fewer than 500 employees, even those with under 50 who are usually excluded from FMLA mandates.
The Poster: Please post the FFCRA poster in your workplace next week and if you have employees working remotely, email it to them. It can be found in both English and Spanish HERE.
Severance: We have received several questions about whether employers should offer their standard severance package to those employees being laid off. Severance is not required by law, so unless you have contractually promised it to employees, it is optional. In addition, severance is usually used in exchange for a release of all claims when you are parting with employees permanently. It is not generally used for temporary layoffs. At this point, we are all hoping these layoffs are temporary. As things start getting back to normal, it may become clear that you will not have positions for all of your employees to return to. At that point, it would probably make more sense to address severance.
OSHA: For those companies still working, the Occupational Safety and Health Administration ("OSHA") has provided a wealth of information on the workplace safety aspects of the COVID-19 pandemic, including on preparing your workplace for COVID-19. For more information see HERE.
ADA/ADEA: When this all started (was it really less than two weeks ago?!?), the Governor first asked all employees over the age of 65, and those with preexisting medical conditions that make them more vulnerable to COVID-19 to stay at home. The stay at home order was later expanded to apply to all non-essential workers. Most of us have asked our employees to comply with these directives. As new information seems to indicate that younger people are just as susceptible to the virus as older people (although maybe better able to survive it), the question remains about what employers can require. The EEOC has supplied some guidance on this HERE. Essentially, we can ask employees whether they are experiencing symptoms related to COVID-19, we can check their temperatures, we can send them home if they display flu-like symptoms or are exposed, we can encourage them to telework, and otherwise engage in the good faith interactive process; but we cannot exclude older or more susceptible employees from the workplace for health or safety reasons unless they pose a significant risk of substantial harm even with reasonable accommodation. This is a tough balance, and one we need to navigate on a case-by-case basis. Remember to also keep medical information confidential, including the identities of those who may test positive for COVID-19.
CARES: The Coronavirus Aid, Relief, and Economic Security Act ("CARES Act") just passed providing at least $2 trillion in direct aid to states, municipalities, individuals and businesses. Many companies will qualify for a combination of loans, tax breaks and grace periods, including a small business paycheck protection program, an employee retention tax credit, deferral of payroll taxes, expanded net interest deductions, and expanded net operating loss provisions. You can find a good summary of the CARES Act HERE. Much more will follow in the coming weeks.
Contact: Keeping in contact with employees is critical during this time. Our employees are our number one asset, and we need them to return to work when this is over. They are feeling vulnerable, isolated, and concerned about their finances. Keeping in touch will help. Get everyone's email addresses, share a favorite meme of the week, organize a Zoom happy hour (we had our first one on Friday and it was fun!), ask employees to share funny stories of how they are passing the time, provide updates as they become available. It will be appreciated.
Financial Hardship: In case your business is still reeling from the economic impact of the times and you are not sure whether you need to make your first or additional layoffs, you still have options. Under the new EPSL leave and FMLA expansion, there is an exception to the requirement to provide the paid leave if you have less than 50 employees and have decided that providing the leave would jeopardize the viability of the business as a going concern. The DOL has released further guidance on this HERE. Also, the CARES Act can provide forgivable loan options which may be what you need to bridge the gap. The U.S. Chamber of Commerce is compiling information HERE.
A Final Thought: As I found myself fuming at the federal government this week for not giving us better guidance on how to interpret all of these new laws that are changing by the moment, and at myself for not immediately knowing how to answer the rapid-fire questions coming my way, I took a deep breath and decided to give both the government and myself a little bit of grace. Easier said than done, but I hope you are all able to do the same for yourself and those around you. We are all doing the best we can under daunting circumstances.
Enjoy the rest of your weekend and please let me know if we can assist in any way. Dawn
Questions/comments? Contact Dawn Ross at dross@cmprlaw.com or call (707)526-4200 x.124.