The Human Resources Department at Printing Industries of America has compiled essential information for employers regarding COVID-19. Included in these resources are mandatory posters (for employers with fewer than 500 employees), fact sheets from the Department of Labor, and frequently asked questions about the Families First Coronavirus Response Act (FFCRA). Also included on this page are other frequently asked questions about COVID-19 as it relates to HR topics.
Printing Industries of America also has a page with a general list of safety, recovery, and advocacy resources related to COVID-19. You can view that page at https://www.printing.org/covid-19-resources.
You can also find some general information on the COVID-19 pandemic in the Families First COVID-19 Constituent Service Resources Toolkit published by the U.S. House of Representatives.
Printing Impressions Interview
PIA's VP of Human Relations, Adriane Harrison, was recently interviewed by Printing Impressions regarding what printers need to know about the Families First Coronavirus Response Act, the Paycheck Protection Program, and other COVID-19-related HR issues.
Impressions Exchange Podcast
Adriane also recently spoke with Printing Impressions Editor-in-Chief Mark Michelson about how a printer should respond if an employee tests positive for COVID-19, when that worker can return to work, how to minimize exposure among your workforce, if you can require all staff to wear masks, and much more.
The EEOC has now stated that it is allowable for a company to require an employee to have a COVID-19 test when it is job-related and a business necessity. The guidance is not specific about what will trigger the need to test. We recommend the following circumstances to require employee COVID-19 testing--keeping in mind that this list is not exhaustive and there may be situations where testing is justified that are not on the list:
- Employee has been sick and has had some COVID-19 symptoms.
- Employee has been diagnosed with COVID-19 and is ready to return to work (I would require two negative test results that were taken approximately 72 hours apart).
- Employee is living with or quarantined with a person who has been diagnosed with COVID-19 or is sick with symptoms of the virus.
- Employee has been in very close contact with a person who has been diagnosed with COVID-19 (touching or closer than 6 feet for longer than a brief encounter).
The EEOC allows employers to ask about symptoms that are provided by the CDC, public health authorities, or a reputable medical provider. Accordingly, here is a list of symptoms that, at this time based on government information, an employer is allowed to ask employees if they are experiencing. As with all medical-related information, this information should be kept confidential on a need-to-know basis and retained in a HIPAA-protected location.
- Dry cough
- Shortness of breath
- Repeated shaking with chills
- Muscle pain
- Sore throat
- New loss of taste or smell
Summary of the Families First Coronavirus Response Act (FFCRA)
New laws addressing critical human resources issues have been enacted in response to the coronavirus (COVID-19) pandemic. This legislation is called the Families First Coronavirus Response Act (FFCRA). The new laws include refundable tax credits for employers that are required to offer emergency FMLA or paid sick leave.
The new legislation in response to coronavirus--which applies to businesses with FEWER than 500 employees--requires:
- Twelve weeks of job protection under the revised Family and Medical Leave Act
- The leave applies when
- An employee is unable to work or telework in order to care for a minor child if the child's school or child care has closed or is unavailable due to a public health emergency
- The first 10 days of leave can be unpaid.
- The employee can use PTO (vacation, sick, and/or personal).
- Employers cannot require use of PTO for this leave.
- The remaining FMLA leave MUST be paid by the employer as follows:
- Pay should be at 2/3 of the employee's regular rate.
- Number of hours paid should be those that the employee would be otherwise scheduled to work.
- Pay can be capped at $200 per day.
- Pay can be capped at $10,000 total.
- The employee has job protection to return to their position or an equivalent position after their leave expires or their need for leave is resolved.
- Exception to job protection for employers with fewer than 25 employees:
- If the employee's position has been eliminated due to operational changes resulting from a public health emergency, the employer does not have to provide a position for the employee at the end of their leave.
For companies with fewer than 50 employees:
- If the required leave provisions of this new legislation will jeopardize the viability of the company's business, the company can be excluded from the requirements of this Emergency FMLA legislation.
The new legislation in response to coronavirus--which applies to businesses with FEWER than 500 employees--requires:
- All full-time employees are entitled to 80 hours of paid sick time.
- All part-time employees are entitled to paid sick time hours equivalent to the typical number of hours they are scheduled to work in a two-week time period.
- This sick time may be used by employees in the following circumstances:
- Subject to a federal, state, or local quarantine or isolation order related to COVID-19
- Following the advice of a healthcare provider to self-quarantine because of COVID-19
- Experiencing symptoms of COVID-19 and seeking a medical diagnosis
- Caring for an individual subject to quarantine or self-isolation
- Caring for a minor child whose school or child care is unavailable due to COVID-19 precautions
- Experiencing substantially similar conditions as specified by the Secretary of Health and Human Services.
- The Emergency Paid Sick Leave legislation caps an employer's paid leave requirement to $511 per day ($5,110 in the aggregate) where leave is taken for reasons of quarantine, advice of a medical provider, or when experiencing symptoms and seeking a diagnosis. For the remaining circumstances, employers are required to pay 2/3 the regular rate of pay, capped at $200 per day ($2,000 in the aggregate).
For companies with fewer than 50 employees:
- If the required leave provisions of this new legislation will jeopardize the viability of the company's business, the company can be excluded from the requirements of this Emergency Paid Sick Leave legislation.
When the Emergency FMLA (E-FLMA) and Emergency Paid Leave (E-PLA) Act are read together, employers may use the E-PLA payments for the pay during the 10-day unpaid leave period of the E-FMLA. This means that workers taking E-FMLA leave receive at least a portion of their pay for 12 weeks.
The following posters regarding the new FFCRA are mandatory for employers with fewer than 500 employees.
FFCRA Fact Sheets from the Department of Labor
The Department of Labor has released the following fact sheets regarding the FFCRA.
Families First Coronavirus Response Act (FFCRA) FAQ
If the employees are terminated prior to April 1, the new Families First Coronavirus Response Act does not apply. After April 1, employees can still be terminated, but employers cannot violate the law.
Consider as an example an employee who has to stay home to care for children that are no longer in school due to closures or lack of child care. Before April 1, that employee would have had to quit or been terminated. Under the new law, as of April 1, that employee can request Emergency FMLA and get paid a portion of their wages/salary for it through a combination of the Emergency Paid Sick Leave Act and the Emergency FMLA.
Seeking a diagnosis means that an employee is trying to see a doctor and/or get tested. Because of the crisis, this is not always possible (or takes time), and people who have symptoms and are trying to get diagnosed should stay home until they are cleared.
A local stay-at-home order is a quarantine/isolation order, so it falls under the new laws.
If your company is exempted from a federal, state, or local quarantine or isolation order related to COVID-19 because it has been found to be an essential business and your employees are not required to stay at home, they do not fall under that category of the Emergency Paid Sick Leave Act that says they take paid sick leave during a stay-at-home order. However, employees will qualify if they have any of the other reasons listed in the new law.
The government plan is to have several phases of support to businesses. The money spent under the Emergency Paid Sick Leave Act and the Emergency FMLA is to come back to companies through dollar-for-dollar tax credits.
The FFCRA effective dates are April 1, 2020, through December 31, 2020.
The law will not apply if a company has fewer than 50 employees AND compliance would jeopardize the company's viability to continue its business.
There is not currently any application process for the exemption. Accordingly, we suggest performing a documented analysis that demonstrates that the viability of the business is in jeopardy if the company complies with the statute. Retain the analysis in the event of a future enforcement action. The analysis should be performed by the owner, controller, an outside accountant, or someone that has knowledge and credentials to make sure the analysis is legitimate.
- When calculating the pay level (2/3), average the number of hours worked in a two-week period, including overtime hours.
- If the employee has been working reduced hours due to circumstances arising from the COVID-19 pandemic, the PRIOR schedule before the reduced hours is what the calculation should be based upon.
- If the hours vary, use a six-month average to calculate the average daily hours.
- If the employee was new, use the number of hours that the employee was told when s/he was hired.
- Part-time workers receive the same treatment. They are not excluded from the requirement to pay 2/3.
The child-care provider does not have to be an official provider (i.e., licensed by the state, etc.) For instance, a family member that cares for the child, but is no longer available, qualifies.
There will be dollar-for-dollar tax credits for all qualifying wages paid under the new FFCRA.
Yes, employees may take paid sick leave up to 80 hours for reasons related to COVID-19 under the Emergency Paid Sick Leave Act.
This benefit is in addition to whatever leave provisions the company has provided. So, if an employee has not used any of their unused, accrued sick leave and gets COVID-19, the leave they take will fall under the new Emergency Paid Sick Leave Act. If a few months later the employee gets sick and needs to take sick leave, the employee can use his/her unused, accrued sick leave that is under the company's standard benefit.
Employers do not need to give more than 12 weeks of FMLA/Emergency FMLA in a 12-month period. So, if an employee used 8 weeks of FMLA already in the 12-month period, then that employee has 4 weeks remaining and may take those 4 weeks if s/he qualifies for either regular FMLA or Emergency FMLA. If all 12 weeks of FMLA were taken already in the 12-month period, there is no remaining time available under the Emergency FMLA.
Whether the leave is taken under regular FMLA or Emergency FMLA, there is only 12 weeks available in a 12-month period.
The new IRS form for tax credits, plus instructions for filing, can be found here: https://www.irs.gov/forms-pubs/about-form-7200.
The Emergency Paid Sick Leave Act will allow the employee to stay home with 80 hours of PTO that is reimbursable to the employer through payroll tax credits. You can, but are not required, to get a doctor's note that the employee needs to self-quarantine because of COVID-19. I would recommend getting the letter just to set a precedent, because even if you know that one person is high-risk and doesn't need a letter, you may not know about another person and want a letter to verify that situation. Because you need to treat them consistently, getting a letter from anyone in the situation protects you from any discrimination claims.
This is confusing because it is affected by the caps put in place for federal reimbursement through the tax credits.
The first two weeks of Emergency FMLA (E-FLMA) expansion are unpaid (unless the employee uses PTO). HOWEVER, the Emergency Paid Sick Leave (E-PSL) covers leave due to child-care issues related to COVID-19. Accordingly, if the employee has not used the E-PSL for other purposes, that leave is available to cover the unpaid portion of the E-FMLA.
IMPORTANT: The cap for the E-PSL for the child-care issues is at 2/3 of regular pay. That means that when combined with the E-FMLA all 12 weeks would be at 2/3.
So, the quick reference:
- The first 80 hours are "unpaid" under the Emergency FMLA expansion, but count toward the 12 weeks; however,
- The first 80 hours can be paid by the Emergency Paid Sick Leave Act.
- Remaining Emergency FMLA expansion (up to 10 more weeks) is paid at 2/3.
- There are caps:
- Emergency FMLA expansion is capped at $200 per day ($10,000 in the aggregate).
- Emergency Paid Sick Leave is capped at $511 per day ($5,110 in the aggregate) where leave is taken for reasons of quarantine, advice of a medical provider, or when experiencing symptoms and seeking a diagnosis. For the remaining circumstances--including the child-care portion--employers are required to pay 2/3 the regular rate of pay, capped at $200 per day ($2,000 in the aggregate).
The Emergency Paid Sick Leave requires that 80 hours be paid as follows per the DOL/WHD guidance if used for reason 5, which applies to an employee caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.
For leave reason (5): Employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period--two weeks of paid sick leave followed by up to 10 weeks of paid Emergency Family and Medical Leave).
For the rest of the Emergency Paid Sick Leave, the following guidance applies (the reasons other than child care):
For leave reasons (1), (2), or (3): Employees taking leave shall be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a two-week period). Reasons 1, 2, and 3 are as follows:
1) Employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
2) Employee has been advised by a health care provider to self-quarantine related to COVID-19.
3) Employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis.
For leave reasons (4) or (6): Employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a two-week period). Reasons 4 and 6 are as follows:
4) Employee is caring for an individual subject to an order described in (1) or self-quarantine as described in (2).
6) Employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
An employee must provide his or her employer documentation in support of Emergency Family and Medical Leave (E-FMLA) or Emergency Paid Sick Leave (E-PSL). The documentation must include a signed statement containing the following information:
- The employee's name
- The date(s) for which leave is requested
- The COVID-19 qualifying reason for leave
- A statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason
An employee requesting leave must provide the following additional documentation based on the COVID-19 qualifying reason for the leave:
- Subject to a federal, state, or local quarantine or isolation order related to COVID-19:
- Name of the government entity that issued the quarantine or isolation order to which the employee is subject
- Following the advice of a health care provider to self-quarantine because of COVID-19:
- Name of the health care provider who advised him or her to self-quarantine for COVID-19 related reasons
- To care for an individual subject to quarantine or self-isolation, either:
- (1) Name of the government entity that issued the quarantine or isolation order to which the individual is subject, OR
- (2) Name of the health care provider who advised the individual to self-quarantine, depending on the precise reason for the request
- An employee requesting to take E-FMLA or E-PSL to care for his or her minor child must provide the following information:
- (1) Name of the child being cared for
- (2) Name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons
- (3)A statement representing that no other suitable person is available to care for the child during the period of requested leave
- For leave taken under the E-FMLA for an employee's own serious health condition related to COVID-19, or to care for the employee's spouse, son, daughter, or parent with a serious health condition related to COVID-19, the normal FMLA certification requirements still apply.
CARES Act Summary of HR Provisions & Paycheck Protection Program Loans
Revisions to the CARES Act Paycheck Protection Program (PPP) were signed into law on June 5, 2020. Here is a summary of the new provisions:
- PPP loan periods have been extended from the original 8 weeks to 24 weeks--or December 31, 2020--whichever comes first. This gives companies more time to spend the money to achieve the forgiveness criteria. For instance, spending the money on payroll will be easier because the loan period has been tripled. This will help offset reduced payroll expenses due to reduced headcount.
- Now, only 60% of the PPP loan has to be spent on payroll, rather than the original 75%, in order to be forgiven.
- Consequently, 40% of the PPP loan can be spent on non-payroll expenses such as rent, mortgage interest, and utilities.
- There will not be proportional forgiveness if the 60% payroll figure is not met because companies have a longer period in which to spend the money on payroll.
- Headcount for full-time equivalent employees, which previously had to be restored by June 30, is now is extended to December 31, 2020.
- The headcount will be forgiven if the company can document that it is unable to rehire employees or hire similarly qualified employees for the unfilled positions by Dec. 31, 2020,
- OR the company has not returned to the same level of business activity that it was at before Feb. 15, 2020, due to compliance with federal requirements or guidance set forth between March 1-Dec. 31, 2020, relating to standards of sanitation, social distancing, or other worker or customer safety requirements related to COVID-19.
- Previously, the loans had a six-month deferral before the first repayment installment, and the note was repaid over a two-year period at 1% interest. Now, the first payment for the loans are not due until ten months after the close of the loan period, and payment of the loan will be made over a five-year period. The interest rate is unchanged at 1%.
- Companies may still defer payroll taxes. Previously, the deferment was until the lender let companies know how much of the PPP loan was to be forgiven. Now, the payroll taxes are automatically deferred through the end of 2020, no matter when companies are informed of the forgiven amount.
The Paycheck Protection Program allows companies to do the following:
- Borrow up to 250% of average monthly payroll expenses (capped at $10 million)
- Borrow additional amounts necessary for debt expenses such as mortgage interest, rent, and utilities
Here are some additional details about the program:
- Program covers any eight-week period between February 15-June 30.
- Loans can be forgivable after eight weeks of term compliance.
- Companies must maintain pre-crisis levels of FTE or the forgivable part will be proportioned to the reduction in headcount.
- For a company that has already reduced headcount at the time they take out the loan, forgiveness is restored IF they hire back to the pre-crisis level of FTEs by June 30.
- Deferred payment periods are built into the loans.
More information can be found here at Small Business Administration Paycheck Protection Program and also here in the Small Business Owners Guide to the CARES Act. PIA has also put together additional information about this program here.
Calculate the borrowing amount for U.S. employees based on the following guidelines:
- The amount for any one employee is capped at $100,000 in annual salary.
- The calculation excludes FICA taxes or income tax collected at the source.
The calculation can include the following:
- Salary, wage, commission, or similar compensation
- Payment of cash tip or equivalent
- Payment for vacation, parental, family, medical, or sick leave
- Allowance for dismissal or separation
- Payment required for the provisions of group health care benefits, including insurance premiums
- Payment of any retirement benefit
- Payment of state or local tax assessed on the compensation of employees
The calculation also can include payments of any compensation to, or income of, a sole proprietor or independent contractor that is a wage, commission, income, net earnings from self-employment, or similar compensation.
The permitted uses for the Payroll Protection Program (PPP) loans include the following:
- Payroll costs
- Costs related to the continuation of group health care benefits during periods of paid sick, medical, or family leave, and insurance premiums
- Employee salaries, commissions, or similar compensations
- Payments of interest on any mortgage obligation (which shall not include any prepayment of or payment of principal on a mortgage obligation)
- Rent (including rent under a lease agreement)
- Interest on any other debt obligations that were incurred before the covered period
- Other approved uses for loans made under Section 7(a) of the Small Business Act, which includes equipment and fixtures, working capital, inventory, seasonal line of credit, or refinancing debt, including an EIDL
PPP loans are subject to forgiveness, in whole or in part, for certain "covered expenses" incurred during the eight-week period following the date of the PPP loan. The amount of principal that is forgiven is not included in gross income for tax purposes.
- Covered expenses are payroll costs, interest on covered mortgage obligations, rent obligations, and utilities
For the official guidance about Paycheck Protection Program loans, click here: https://www.sba.gov/document/policy-guidance--ppp-affiliation-interim-final-rule. Go to page 8 to find the information about how to calculate borrowing amounts.
PPP loans will be forgiven for payroll expenses for commission-earning employees (but capped at $100,000). Calculate as follows:
- Total compensation in 2019 (base + commission)
- Divide by 12 for monthly average
- Cap at $8,333 gross (average of $100K/year)
- For the purposes of the Employee Retention Credit, Eligible Employers are those that carry on a trade or business during calendar year 2020, including a tax-exempt organization, that either:
- Fully or partially suspends operation during any calendar quarter in 2020 due to orders from an appropriate governmental authority limiting commerce, travel, or group meetings (for commercial, social, religious, or other purposes) due to COVID-19; or
- Experiences a significant decline in gross receipts during the calendar quarter.
- A significant decline in gross receipts begins with the first quarter in which an employer's gross receipts for a calendar quarter in 2020 are less than 50 percent of its gross receipts for the same calendar quarter in 2019. The significant decline in gross receipts ends with the first calendar quarter that follows the first calendar quarter for which the employer's 2020 gross receipts for the quarter are greater than 80 percent of its gross receipts for the same calendar quarter during 2019.
- An Eligible Employer will not be subject to a penalty under section 6656 of the Code for failing to deposit federal employment taxes relating to qualified wages in a calendar quarter if:
- the Eligible Employer paid qualified wages to its employees in the calendar quarter before the required deposit;
- the amount of federal employment taxes that the Eligible Employer does not timely deposit, reduced by any amount of federal employment taxes not deposited in anticipation of the paid sick or family leave credits claimed under the FFCRA, is less than or equal to the amount of the Eligible Employer's anticipated Employee Retention Credit for the qualified wages for the calendar quarter as of the time of the required deposit; and
- the Eligible Employer did not seek payment of an advance credit by filing Form 7200, Advance Payment of Employer Credits Due to COVID-19, with respect to any portion of the anticipated credits it relied upon to reduce its deposits.
The IRS has provided a comprehensive FAQ about the Employee Retention Credit program here: https://www.irs.gov/newsroom/faqs-employee-retention-credit-under-the-cares-act.
The Employee Retention Credit is a fully refundable tax credit for employers that is equal to 50 percent of qualified wages (including allocable qualified health plan expenses) that Eligible Employers pay their employees after March 13, 2020, and before January 1, 2021. The maximum amount of qualified wages taken into account with respect to each employee for all calendar quarters is $10,000, so that the maximum credit for an Eligible Employer for qualified wages paid to any employee is $5,000.
- An Eligible Employer may not receive the Employee Retention Credit if the Eligible Employer receives a Small Business Interruption Loan under the Paycheck Protection Program that is authorized under the CARES Act ("Paycheck Protection Loan"). An Eligible Employer that receives a paycheck protection loan should not claim Employee Retention Credits.
- The amount of qualified wages for which an Eligible Employer may claim the Employee Retention Credit does not include the amount of qualified sick and family leave wages for which the employer received tax credits under the Families First Coronavirus Response Act.
In order to assist employers with immediate cash-flow issues, the CARES Act also provides that employers may defer payment of their portion of Social Security taxes they would otherwise be obligated to pay. Any deferred payroll taxes would be required to be paid over the next two years--with half of the owed amount being required to be paid by December 31, 2021, and the remaining half by December 31, 2022. This payroll tax "holiday" may provide additional assistance to employers during this period of crisis.
The EIDL program is pre-existing but has been modified to add a quick infusion of $10,000 within a few days of application.
Here is a short summary of the EIDL program:
- Loans of up to $2 million can be taken for up to 30 years at a low interest rate--3.75% for small businesses.
- The loans are not forgivable.
- The new CARES Act makes $10,000 available within three business days of application.
- Loans may be used for working capital purposes, including payroll.
- These MIGHT be able to be refinanced into Payroll Protection Program (PPP) loans if they were obtained after January 31, 2020. That would convert them to forgivable loans.
CARES Act FAQ Related to HR
The new stimulus package in the CARES Act, passed by Congress at the end of last week, significantly extends supplements and expands unemployment benefits to workers.
- People who previously did not qualify for unemployment insurance, such as gig workers, will now be covered by the government's new stimulus package. Freelancers are now covered.
- The federal government will provide 13 weeks of additional unemployment supplement to whatever a particular state is providing. So, for example, if a state provides 26 weeks of unemployment, the government will cover an additional 13 weeks, for a total of 39 weeks of coverage.
- The government's unemployment supplement will add an additional $600/week to the standard unemployment benefit that the state has set for up to four months.
The new CARES Act provides an additional 13 weeks of unemployment as well as a supplement to the unemployment payment of an additional $600/week more than the existing benefit provided by the state for up to four months. It is possible that with the $600 supplement, an employee could bring home more money than the employee earned while working.
The federal support comes in two forms. First, the unemployment coverage period will be extended an additional 13 weeks as part of the federal government support. Second, for the first four months, people will receive an additional $600/week in addition to the state benefit amount. For example, if the state pays a UI benefit of $300, then for the first four months, that benefit will be $900 due to the federal boost. And, for example, if the state pays 26 weeks of unemployment, that period will be extended for 13 weeks, for a total of 39 weeks of coverage.
Other HR Coronavirus FAQ
The EEOC has added to its guidance and technical assistance related to COVID-19. The guidance can be found here, but the new additions are summarized below.
Regarding reasonable accommodation:
- If an employee seeks accommodation because s/he is concerned about exposing a family member or member of the household, the employer is NOT required to accommodate. While accommodation can be voluntary, it is not mandated.
- Employers are not required to accommodate employees related to COVID-19 solely based on age. While the CDC has stated that people 65+ are at higher risk for severe illness if contracting COVID-19, that alone does not require accommodation. Employers may choose to be flexible with workers in this category and provide some accommodation voluntarily. This is true even if such accommodation results in workers younger than 65 being treated less favorably based on age in comparison to the 65+ workers.
Inviting employees to request flexibility in work arrangements:
- A general statement can be made to ALL employee that invites them to request flexibility or accommodation. The statement should note that all requests will be considered on a case-by-case basis. The statement should also direct the person or people who should receive the requests. Once a request has been made, it should be handled in a manner consistent with federal requirements.
- Flexible work arrangements made for employees with school-aged children are not discriminatory if male and female employees are treated the same. Employers should not make gender-based assumptions about who may have caretaking responsibilities for children.
Employee screening when coming to work:
- If the employee requests an alternative screening process when coming to work based on a medical condition, treat this as an ADA request for accommodation and use the interactive process to come up with an alternative to the screening process.
Treatment of pregnant employees during the COVID-19 pandemic:
- Pregnant employees cannot be required to work at home or be otherwise excluded from the workplace based on their pregnancy.
- Requests for accommodation by pregnant employee should go through the standard ADA interactive process. Pregnant employees are entitled to job modifications that may include, among other things, telework and leave--to the extent that such leave would be provided for other employees who are similarly situated in their ability /inability to work.
A furlough is the same as a temporary layoff, which means that the employee may be called back in to work. Unemployment compensation criteria is determined by each state. Most states will pay unemployment compensation to furloughed or temporarily laid off employees. Some states suspend their requirement to seek new employment if the furlough/temporary layoff is of a predetermined period.
A regular layoff indicates that the employee is not going to be rehired by the company and the separation is considered permanent. Employees who are laid off are generally eligible for unemployment compensation and subject to the requirements to seek new employment.
Each state has a worker's compensation system in place. During this COVID-19 crisis, states may have activated their Disaster Unemployment Assistance. Eligibility information about the program can be found here: Disaster Unemployment Assistance (DUA). The DUA benefits often can be received more quickly than under the standard Unemployment Compensation (UC) system and may not require recipients to seek new employment for a period of time as they may be called back to their original employer.
The federal Worker Adjustment and Retraining Notification (WARN) Act requires 60-days' notice for mass layoffs and plant closings under certain conditions.
**Please note an important exception to the federal WARN Act that likely applies in these early stages of the pandemic. That exception foregoes notice if the closing or mass layoff is caused by business circumstances that were not reasonably foreseeable at the time that the 60-day notice would have been required (i.e., a business circumstance that is caused by some sudden, dramatic, and unexpected action or conditions outside the employer's control, like the unexpected cancellation of a major order). This is currently legally untested, but it is reasonable that in the early stages of the COVID-19 pandemic, the stay-at-home orders and business closures would not have been reasonably anticipated.
During the COVID-19 crisis, many companies are laying off employees or temporarily closing their facilities.
As a general matter, employers with 100 or more full-time workers (total) must provide written notice at least sixty (60) calendar days in advance of covered plant closings and mass layoffs, as described below.
So, technically, WARN Act requirements would be triggered if you are planning for the following:
- Plant Closing: A covered employer closes a facility or discontinues an operating unit (as defined under WARN), permanently or temporarily, affecting at least 50 full-time workers at a single site of employment. A plant closing also occurs when an employer closes an operating unit that has fewer than 50 workers but that closing also involves the layoff of enough other workers to make the total number of layoffs 50 or more.
- Mass Layoffs:
- (1) A layoff of 500 or more workers (not counting part-time workers) at a single site of employment during a 30-day period.
- (2) A layoff of 50-499 workers (not counting part-time workers), when these layoffs constitute 33% of the employer's total active workforce (not counting part-time workers) at the single site of employment.
In determining whether an employer meets the 50-full-time-worker threshold to trigger WARN, an employer must analyze whether the workers were subject to an "employment loss," which can mean many different things, including in non-traditional settings currently at issue with COVID-19, such as:
- Temporary Layoff: (1) A temporary layoff exceeding 6 months that meets the criteria of a plant closing or mass layoff; or (2) a temporary layoff that initially was planned for less than 6 months, and then the employer decides to extend the layoff for more than 6 months. If the extension occurs for reasons that were not reasonably foreseeable at the time the layoff was originally announced, notice need only be given when the need for the extension becomes known. Any other case is treated as if notice was required for the original layoff.
- Reduction in Hours: A reduction in work hours for 50 or more full-time workers by 50% or more for each month in any 6-month period. Again, the event need not be permanent to trigger WARN.
Here are some examples of when WARN Notice is not required:
- If a plant closing or mass layoff results in fewer than 50 full-time workers losing their jobs at a single site of employment.
- If 50-499 workers lose their job and that number is less than 33% of the employer's total active workforce at a single site.
- If a layoff is for 6 months or less.
- If worker hours are not reduced 50% in each month of any 6-month period.
Yes, employers can cut back on employee hours in response to an economic downturn due to the current public health crisis, governmental directives for company closures, and other economic consequences of the pandemic.
If the company is reducing hours, for instance closing one day each week (20% reduction based on a five-day work week) or two days (40%), then your employees may be covered by a work share program.
This program is state based, and not every state has one. Here is a link to information about the program: Work Share Links: National Council of State Legislatures.
These programs may differ from state to state. The company applies for work share status, and once given, workers will receive unemployment compensation for the portion of work that has been reduced.
A company can require a person who has traveled to high-risk areas to not report to work for 14 days after returning from travel. The level of risk can be determined from the CDC travel information found here: https://www.cdc.gov/coronavirus/2019-ncov/travelers/after-travel-precautions.html. Companies should follow the requirements of the new emergency legislation, which are outlined above.
Cruise ship travel is now considered to be high risk also: https://wwwnc.cdc.gov/travel/notices/warning/coronavirus-cruise-ship.
An employee may be allowed to work if s/he shows no symptoms and can be accommodated so that s/he does not have close contact with coworkers, for instance, teleworking. If the position is not amenable to teleworking, the person may be able to return to work if s/he can be kept at least 6-10 feet from other employees and is restricted from break rooms and other places where people congregate. Availability of segregated restroom facilities would need to be considered as well.
However, the OSHA general duties clause requires employers to keep employees safe from recognized hazards. COVID-19 is a recognized hazard, so prohibiting employees from returning to work after travel to high risk areas for 14 days would be conforming to OSHA's general duties requirements.
In addition, if an employee has traveled to a high-risk area, their likely exposure to the COVID-19 virus probably falls under the "direct threat" exception to protections afforded under the Americans with Disabilities Act.
Again, companies should follow the requirements of the new emergency legislation, which are outlined above.
All interviews should be via Skype, GoToMeeting, Facetime, or a similar service. If you must do an in-person interview, choose an outdoor space if possible and keep a distance. If interior spaces are required, use a larger room that allows for 6-10 feet of distance between the interviewer and the candidate.
Anytime a person comes into the building, they should be symptom free. Onboarding should respect physical distancing as closely as possible, and of course, all hygiene protocols such as handwashing, no handshakes, etc. should be observed. Both employers and employees should use hand sanitizer before touching forms.
Of course, all of the cleaning and distancing protocols should be adhered to once the employee starts work.
This new program allows small businesses under 500 employees to borrow up to 250% of their average monthly payroll expenses, up to a total of $10 million. This amount is intended to cover 8 weeks of payroll expenses and any additional amounts for making payments towards debt obligations. This 8-week period may be applied to any time frame between February 15, 2020, and June 30, 2020. The goal is to keep people employed during any downturn in business due to the COVID-19 pandemic.
The amount of principal that may be forgiven is equal to the sum of expenses for payroll and existing interest payments on mortgages, rent payments, leases, and utility service agreements. Payroll costs include employee salaries (up to an annual rate of pay of $100,000), hourly wages and cash tips, paid sick or medical leave, and group health insurance premiums. If you would like to use the Paycheck Protection Program for other business-related expenses, like inventory, you can, but that portion of the loan will not be forgiven.
With regard to the reimbursements for the Emergency Paid Sick Leave credits: These are dollar-for-dollar credits, not part of the Paycheck Protection Program small business loans. I believe these will be reimbursed through payroll tax credits, but so far I have no details about the process to get those payroll tax credits. I expect the details/process to come out soon.
That being said, the Paycheck Protection Program loans can be used to cover all aspects of payroll and other expenses. However, if the loan is used to pay the paid leave costs originating from Emergency Paid Sick Leave Act, the part of the small business loan used for that purpose will not be forgiven (there is forgiveness after 8 weeks for other payroll expenses) and will need to be repaid under the terms of the loan agreement.
These are sticky issues that can trigger problems with the EEOC, which has not issued guidance about indirect contact. I don't think you can ask questions about how the employee is managing that situation because nobody that the employee lives with has been diagnosed with the virus. There are "direct threat" exceptions that would (in my opinion) allow asking if the employee was directly exposed.
A general policy could say something like the following:
- Please be hypervigilant about recognizing any symptoms of COVID-19 and remain home if you have those symptoms.
- Please remain on a home quarantine when having known direct exposure to the virus. This period of quarantine should be for two weeks after that exposure. Coming to work when having direct exposure to the virus puts your coworkers at risk and presents a direct threat to their health and safety.
Yes. Federal law allows an exempt employee's salary to be reduced prospectively (going forward) based on business or economic slowdowns. There are local laws that also impact this as far as notice is concerned. It is something that should be run past a local employment attorney before implementing.
If the salary reduction drops an employee under the exempt threshold of $684 weekly ($35,568 annually), the employee will no longer be exempt. They now become eligible for overtime. The exemption is based on meeting BOTH the duties test and the salary threshold, so if the threshold is not met, the employee will be overtime eligible.
Click the links to download the documents, which can be modified for your use.
Please visit the following sites for information and guidance on coronavirus disease (COVID-19):