Posts from March 2020.

***Please see updated information on FFCRA regulations in our April 3, 2020 post.

A component of the recently passed Families First Coronavirus Response Act (FFCRA) requires covered employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 starting April 1. Additionally, many states and local governments have now mandated that non-essential businesses close and that its citizens stay at home, subject to certain exceptions, often referred to as Shelter in Place (SIP) or Stay at Home orders.

The question ...

Businesses with a unionized workforce need to consider whether their responses to the COVID-19 pandemic constitute unilateral changes under existing work terms and conditions. An employer’s duty to bargain in good faith with its employees’ union encompasses many obligations, including the duty to not make certain changes to work terms and conditions without bargaining with the union. While a union is not likely to bring an unfair labor practice charge against an employer for “benevolent” unilateral changes, a union generally has a solid basis to bring an unfair ...

At the time of passage of the Families First Coronavirus Response Act (FFCRA), the Department of Labor (DOL) was tasked with issuing guidance on how a “small employer” might be exempt from providing paid sick leave and expanded FMLA benefits if doing so affected the business’s viability. The DOL has now issued guidance that addresses how this viability exemption can be met. Specifically, the DOL states that an employer, which includes religious or nonprofit organizations, with fewer than 50 employees (small business), is exempt from providing paid emergency sick ...

On March 28, 2020, the U.S. Department of Labor (DOL) issued an update to its “Families First Coronavirus Response Act: Questions and Answers” to address, among other things, the Families First Coronavirus Response Act (FFCRA) provisions that allow employers of “health care providers” and “emergency responders” to exclude such employees from the FFCRA’s emergency sick leave and expanded FMLA provisions. The specific questions that address the provisions for health care providers and emergency responders shown in this article can be found on the DOL ...

On March 18, President Trump signed into law the Families First Coronavirus Response Act (FFCRA). A component of the FFCRA is the Emergency Paid Sick Leave Act (EPSLA), which requires covered employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to the COVID-19 corona virus starting April 1. 

Generally, EPSLA requires covered employers to provide all employees with two weeks (up to 80-hours) of paid sick leave at the regular rate of pay when the employee is unable to work because he/she is quarantined pursuant with ...

For purposes of the Families First Coronavirus Response Act (FFCRA), the regular rate of pay used to calculate an employee’s paid leave is not necessarily the employee’s base wage or salary.  According to the Department of Labor (DOL) FAQs regarding the FFCRA, the pay rate for an employee’s FFCRA leave is the average of the employee’s regular rate over a period of up to six months prior to the date the employee takes the leave.  If the employee has not worked for the employer for at least six months, the regular rate used to calculate any FFCRA paid leave is the average of the ...

The U.S. Senate unanimously passed the CARES Act, and it is up for vote TODAY before the U.S. House of Representatives, with a promise of swift passage. You need to pay attention. This is about more than emergency relief.

Look at page 524 of the bill, which would apply to any mid-sized business that takes a loan under this Act:

“Any eligible borrower applying for a direct loan under this program shall make a good-faith certification that— ….

(X) that the recipient will remain neutral in any union organizing effort for the term of the loan.”

This means that if you employ between 500 ...

As many of you know, employers with 500 or more employees are exempt from the Emergency Family and Medical Leave Expansion and the Emergency Paid Sick Leave provisions of the Family First Coronavirus Response Act (FFCRA). Now that the Department of Labor (DOL) released FAQs regarding the FFCRA, we know a bit more about how the DOL will count employees for the purpose of meeting the 500 employee threshold – including that it will apply the Fair Labor Standards Act’s (FLSA) joint-employer analysis and the Family and Medical Leave Act’s (FMLA) integrated employer test in making ...

We are diligently reviewing the CARES Act for the sections that will most affect small and mid-sized businesses across the country. As we dive ever deeper into the Act, we will post individual section summaries to our web page. We know you are craving information on changes to small business loans and tax policy which could bring some relief to your business so we started with those.

PAYCHECK PROTECTION PROGRAM – FINANCIAL ASSISTANCE THROUGH “FORGIVABLE” SBA LOANS

The CARES Act expands eligibility for small business loans made under section 7(a) of the Small Business Act by ...

On March 25, 2020 the Department of Labor (DOL) released digital versions of the required notice of The Families First Coronavirus Response Act (FFCRA). Under the FFCRA every covered employer (covered employers include most public sector employers and all private sector employers with fewer than 500 employees) must post a notice of the Families First Coronavirus Response Act (FFCRA) requirements in a conspicuous place on its premises. Obviously, where should you post the notice if you are remote in whole or in part? According to the DOL, since many employers have all or ...

On March 24, 2020, the Department of Labor (DOL) released the much anticipated FAQs regarding the Family First Coronavirus Response Act (FFCRA). The DOL’s FAQs offer clarification on some of the more pressing questions that have been on employers’ minds. Of particular note is information relating to the counting of employees, commencement of the leave and compilation of the leave. Of major significance is that the FFCRA will become effective on April 1, 2020 (not April 2nd) and it is not retroactive (and, any benefits provided by employers now through March 31, 2020 cannot ...

On March 20, 2020, the Department of Homeland Security (“DHS”) announced that it would relax its “physical proximity” requirements associated with completion of Section 2 of the Form I-9.  Employers can take advantage of this relaxed standard ONLY IF the entire workforce is completely working remotely. If there are employees physically present at the employer’s worksite, there is no exception to the in-person requirement for reviewing original documents for the Form I-9.  However, note, DHS will look at the situation on a case-by-case basis if the employee cannot be ...

Our clients continue asking us the same two questions about COVID-19 as it pertains to their obligations under OSHA. We include those questions and our answers below:

1. What does OSHA expect me to do to prevent the spread of COVID-19 to my employees?

Answer:  OSHA has provided guidance on steps employers can take to prevent the spread of COVID-19 in the workplace. This guidance appears to relate largely to employers outside of the healthcare industry. Industry associations have also put out their own guidance, including the AGC. The AGC guidance provides practical ...

You have dedicated employees that continue to courageously and diligently work the “front lines” during this time. Or, perhaps you’ve had to furlough or issue temporary layoffs to employees and you want to find some way to ease the burden on them.  Perhaps it’s not out of the simple goodness of your heart. Perhaps it’s because you’re cognizant that self-isolating individuals are on social media more than ever and that everyone seems to be sharing information about the policies employers are implementing during this time.

Regardless of your motivation, when President ...

For the first few months of 2020, we watched COVID-19 spreading in other countries as if it were some sort of science experiment that would never reach the U.S.  Now, with reported cases in 50 states and confirmed community spread in numerous locations throughout the U.S., we frighteningly watch the numbers increase. But how do we deal with our fears? Is fear a reason not to come to work when your job simply does not otherwise allow you to work from home? It’s important for employers to be the voice of reason amidst the panic and not feel bad for doing so.

Business needs to be able to ...

On March 24, 2020, Governor Tony Evers issued Emergency Order #12 entitled “Safer At Home Order.” The Order goes into effect at 8:00 a.m. on Wednesday, March 25, 2020 and will remain in effect until 8:00 a.m. on Friday, April 24, 2020.  Until then, all individuals present within the State of Wisconsin are ordered to stay at home and may only leave their homes for the following functions as defined in the Order: 1) Essential Activities; 2) Essential Governmental Functions; 3) to operate Essential Businesses and Operations; and 3) to perform non-essential Minimum Basic ...

Our blog previously reported on various state and local social distancing and shelter-in-place orders including California, Pennsylvania and Illinois.

The State of Missouri mandated social distancing and restrictions on social gatherings and closed all schools. The City of St. Louis and St. Louis County  have each issued separate stay at home orders for residents and businesses. Below are  brief summaries and links to the actual orders.

Missouri’s Social Distancing Order

Governor Parsons ordered “Social Distancing” across the entire Show-Me State and ...

The Small Business Administration (SBA) has become a direct lender to small businesses for emergency working capital needs due to the economic injuries that Coronavirus (COVID-19) is causing.  Small for-profit and non-profit businesses in Illinois, Indiana, Iowa and Michigan and specified counties that are contiguous to these states in Wisconsin, Missouri, and Kentucky (Covid-19 Disaster Areas) are eligible for these SBA Economic Injury Disaster Loans. The application process is online through the SBA website.

Small businesses interested in such emergency funding can ...

On March 18, the president signed into law H.R. 6201. Division G of the law provides tax credits for businesses that compensate their employees for time off due to the Coronavirus pandemic. The purpose of the law is to help employees.

A tax credit is more valuable than a tax deduction. For example, a $10 credit reduces tax by $10. But the value of a $10 deduction depends on the taxpayer’s tax rate. If that is 36%, the value of the deduction is $3.60.

ADMINISTRATIVE EXPLANATION OF THE NEW LAW

On March 20, 2020, the Treasury Department, IRS and Department of Labor issued Release 2020-57 which ...

As we continue to grapple with the impact of the COVID-19 pandemic, and with potentially more drastic measures being imposed by health officials, the question becomes what is the impact on employers if a shelter-in-place order is issued. The answer:  it depends on the order.

In response to the crisis, a number of states, counties and cities have imposed or are considering shelter-in-place orders. Generally, a shelter-in-place order means that individuals must stay in their residences and not leave “unless necessary for one of the designated exceptions.” The purpose of such ...

Earlier we reported on the issuance of “shelter-in-place” orders in California and Pennsylvania as well as a number of other communities.  Effective March 21, 2020 at 5:00 pm CST and until April 7, 2020, Illinois will join the ranks and implement its own “Stay at Home” order.  As we also noted earlier, “shelter-in-place” orders differ from one jurisdiction to another and some may be more restrictive.  Illinois’ approach, however, is more permissive and gives businesses and individuals more latitude. 

Pursuant to the Illinois order, all persons may leave their ...

With the ink barely dry on the president’s signature, employers are now turning to whether they need to and how to comply with the Families First Coronavirus Response Act (“Act”) (HR 6201).  Since the law was signed by President Trump on March 18, 2020, the leave provisions are set to go into place on April 2nd.  The US Department of Labor (“DOL”) shall provide a sample notice for employers required to comply with the emergency paid sick leave provisions within seven (7) days, and we may see additional guidance from the DOL in the near future.

First, note that the paid leave ...

As we previously reported, on March 14, 2020, the U.S. House of Representatives passed House Bill 6201 (HR6201). The legislation seeks to protect private sector workers and government employees during the COVID-19 pandemic. In the face of some pushback from the “small business community” and other “special interests,” the House subsequently revised the original legislation and delivered it to the U.S. Senate on March 16, 2020.  Today, March 18, 2020, the U.S. Senate passed a modified bill for the President’s signature. The mandates focus on three (3) primary ...

As you know by now, COVID-19 is changing things on a daily, if not hourly or minute by minute basis. In reviewing this advice, you must understand that guidance will change as the COVID-19 pandemic evolves. As such, employers MUST continue to get up to date information from public health authorities on maintaining workplace safety.

The CDC, EEOC and World Health Organization (WHO) each have their own guidance on addressing the workplace and employees under a pandemic situation:

On March 14, 2020, the U.S. House of Representatives passed House Bill 6201 (HR6201). The legislation seeks to protect private sector workers and government employees during the COVID-19 pandemic. However, the legislation does not apply to any private sector employer with 500 or more employees. To be clear, the current legislation will regulate only those private sector employers who employ less than 500 employees. The Senate is expected to take up the bill early this week. The legislation would take effect within 15 days of enactment and expire on ...

Back on December 16, 2019, we reported on the issuance of new regulations by the Trump administration that effectively repealed the 2014 “Quickie Election” Rule issued by the Obama National Labor Relations Board (NLRB).

The 2019 Final Rule, set to take effect on April 16, 2020, was designed to facilitate employers’ efforts to fight private sector labor unions in election cases. It provided more time to react to and educate the workforce on the “Good, Bad & Ugly” of union representation. As we noted before, in issuing the notice of the new regulations, NLRB Chairman ...

Welcome to the Labor and Employment Law Update where attorneys from SmithAmundsen blog about management side labor and employment issues. 

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