The recent spread of the novel coronavirus (COVID-19) in the United States has caused employers to be increasingly concerned and uncertain regarding the future of their workforces. Here are some answers to frequently asked questions (FAQs) about the latest developments on the virus and guidance from federal agencies.
On April 3, 2020, Michigan Governor Gretchen Whitmer signed Executive Order (EO) 2020-36, which expands the protections of Michigan’s Paid Medical Leave Act until the end of the declared state of emergency and prohibits retaliation against workers who are particularly at risk of infecting others in the workplace.
Unfortunately, given the fast spread of the disease, it is now not uncommon for employers to have at least one employee who has contracted COVID-19, forcing the employee to take extended time off from work. In many cases, these employees will not have enough paid time off available to keep them paid until they are able to return to work. In some workplaces, generous co-workers are willing to donate their paid time off to the sick employee, and employers are exploring ways to implement paid-time-off donation or leave-sharing policies. As with everything in California, paid-time-off donation and leave-sharing policies present challenges and, if not implemented correctly, could come back to haunt the employer and the employees.
As COVID-19 continues to remain a critical issue across the country, an increasing number of employers that are allowed to remain open despite shelter-in-place orders may be experiencing staffing shortages. This is because employees may be increasingly absent due to mandatory or voluntary quarantines. To maintain operations, many of these employers are turning to areas of their businesses or enterprises that may have a staffing surplus, and temporarily reassigning those employees to the more essential roles vacated by employees who are absent as a result of the COVID-19 crisis.
On March 27, 2020, President Donald Trump signed the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Among other important provisions, the CARES Act dramatically expands the availability of unemployment insurance (UI) benefits to workers impacted by COVID-19 who otherwise would not normally receive such benefits, including independent contractors and other so-called gig workers.
On April 2, 2020, Georgia Governor Brian Kemp issued Executive Order No. 04.03.20.01 ordering all Georgia citizens to stay at home, unless they are (1) conducting or participating in “Essential Services;” (2) performing “Necessary Travel;” (3) engaged in the performance of or travel to and from the performance of “Minimum Basic Operations” for a business not classified as “Critical Infrastructure;” or (4) actively engaged in the performance of, or travel to and from, employment for a business classified as “Critical Infrastructure.”
On March 30, 2020, Mexico’s Ministry of Health declared a national sanitary emergency “per force majeure” due to the COVID-19 pandemic, mandating the immediate suspension of all private and public sector “non-essential” activities. The order is effective March 31, 2020, through April 30, 2020.
Alaska Governor, Mike Dunleavy, along with Commissioner Adam Crum and Chief Medical Officer, Dr. Anne Zink, have issued a number of health mandates restricting travel and social interaction to help address the state’s increasing concerns with slowing the spread of COVID-19 while attempting to preserve operations of “essential” work.
Following up on its recent temporary enforcement guidance permitting suspension of N95 annual fit-testing for healthcare employers, on April 3, 2020, the Occupational Safety and Health Administration (OSHA) issued an interim Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus Disease 2019 (COVID-19) Pandemic.
The COVID-19 pandemic is a public health and economic cataclysm, and few employers have been able to escape its impact on their business operations and employees. In their efforts to better manage their workforces during this period of extreme economic instability, many employers are turning to unpaid leaves of absences and furloughs as a way to scale back on costs temporarily while maintaining a connection to employees whose help will be critical to restarting normal business operations (whenever that may be). However, at a time when access to health care and financial support for impacted employees is more important than ever, indefinite unpaid leaves or absence and furloughs can present complex administrative issues for many common employee benefit plans. In the discussion that follows, we highlight some of the more important employee benefits issues to consider when employees are placed on unpaid leaves of absence or furloughs.
The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C. could impact your business.
To help ease the administration of retirement plans in Puerto Rico during the coronavirus outbreak, on March 24, 2020, the Puerto Rico Department of the Treasury (commonly known by its Spanish name as Departamento de Hacienda de Puerto Rico) issued Administrative Determination No. 20-09 (AD 20-09).
At 4:00 p.m. on March 31, 2020, South Carolina Governor Henry McMaster announced Executive Order (EO) No. 2020-17, which, starting April 1, 2020, at 5:00 p.m., closes all “non-essential” businesses, venues, facilities, services, and activities for public use. The executive order will remain in effect for 15 days, but is likely to be renewed or expanded upon in the coming weeks.
On March 23, 2020, the Supreme Court of the United States, in Comcast Corp. v. National Association of African-American Owned Media, ruled that a plaintiff who alleges race discrimination under 42 U.S.C. § 1981 must plead and has the ultimate burden of showing that race was a but-for cause of the plaintiff’s injury, and that burden remains constant over the life of the lawsuit.
As part of the reforms introduced under the United Kingdom’s Good Work Plan, amendments to Section 1 of the Employment Rights Act 1996 (ERA) will impose a number of new obligations on employers in relation to written statements of particulars of employment. These changes will come into force on 6 April 2020. As such, employers may want to review and update their standard employment contracts to ensure compliance with the requirements.
Healthcare entities are facing a growing number of challenges related to the virus SARS-CoV-2 and the disease caused by that virus, COVID-19. Among the primary concerns is whether a specific healthcare entity is covered by the Privacy Rule of the Health Insurance Portability and Accountability Act (HIPAA); and if so, how to avoid violating that rule when sharing names or other identifying information of individuals infected with or exposed to the virus.
With over 60 percent of Florida’s COVID-19 cases identified in southern Florida, Governor Ron DeSantis passed new measures in an effort to limit the continued spread of the virus. On March 30, 2020, Governor DeSantis passed Executive Order (EO) No. 2020-89, restricting public access in Miami-Dade, Monroe, Palm Beach and Broward Counties to businesses and facilities deemed non-essential. The March 30, 2020, order also prohibits counties from instituting curfews restricting travel to and from the essential establishments.
While many traditional places of public accommodation, such as theaters, stadiums, restaurants, amusement parks, and retail stores, have shut down their operations in response to “shelter in place” and “social distancing” orders issued to prevent the spread of COVID-19, many businesses deemed “essential” by government orders or otherwise continuing operations have adopted sound safety rules designed to keep their employees safe.
On March 30, 2020, Delaware Governor John Carney issued the Eighth Modification of the Declaration of the State of Emergency. The updated declaration includes a provision ordering that essential businesses deemed as “high-risk” by the Public Health Authority “shall screen every employee, visitor and member of the public upon entering” the business.
On March 27, 2020, President Donald Trump signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act, intended to stimulate the national economy in the wake of the COVID-19 pandemic. The Act provides $2 trillion in direct financial assistance, including paid leave, unemployment insurance (UI) benefits, and rebates to eligible individuals. Immigrants and foreign nationals in the United States may be eligible for some or all of the listed benefits, depending on the circumstances.
The Coronavirus Aid, Relief, and Economic Security (CARES) Act, which President Trump signed on March 27, 2020, contains several significant relief provisions affecting qualified retirement plan participants and plan sponsors.
On March 30, 2020, Governor of the U.S. Virgin Islands Albert Bryan Jr. issued an executive order extending both the previously declared State of Emergency through May 12, 2020, and the territory-wide “stay at home” order through April 30, 2020. The executive order includes several provisions that impact businesses with operations in the Virgin Islands.
The Families First Coronavirus Response Act (FFCRA) went into effect on April 1, 2020, and, just in time, the Department of Labor (DOL) issued temporary regulations to implement the new provisions of the Expanded Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). The regulations largely align with the DOL’s updated “Questions and Answers” (Q&As) that it issued on March 28, 2020. The DOL’s Q&As addressed furloughs, intermittent leave, exceptions for very small businesses, exemptions for health care providers, telework, among other aspects of the law.
We recently reported that on March 21, 2020, Governor Philip D. Murphy’s Executive Order (EO) No. 107 ordered that all non-essential retail businesses close their physical locations in New Jersey until further notice effective immediately. On March 30, 2020, New Jersey expanded, for the second time, the list of essential retail businesses whose physical locations are permitted to continue operating during their normal business hours (which were originally included in EO 107’s order to close “nonessential” businesses to prevent the further spread of COVID-19).
On April 1, 2020, Canada’s Minister of Finance outlined the federal government’s plans for a comprehensive wage subsidy plan that, in total, would put as much as $71 Billion (CAD) back into the pockets of participating employers. The stated purpose of the plan is to maximize the ability of employers to maintain employment relationships with their employees during this difficult time.
In Viet v. Copier Victor, Inc., No. 18-6191 (March 10, 2020), the U.S. Court of Appeals for the Sixth Circuit affirmed summary judgment for Copier Victor and its founder, Victor Le, on an employee’s overtime claims under the Fair Labor Standards Act (FLSA), finding the employee’s testimony regarding the number of hours he worked on a weekly basis too vague and conclusory to withstand summary judgment.
Every day media outlets are reporting on people’s concerns about how the COVID-19 pandemic is being handled: citizens are complaining about the government; politicians are complaining about each other; and workers are complaining about their employers. In addition, stories about protests, walkouts, or other employee-led work disruptions have become increasingly more common. Whether constructively sincere or mere venting, in the context of labor relations, it is imperative employers know and understand the legal parameters that govern their responses to such employee actions.
On April 1, 2020, the National Labor Relations Board announced it will not extend its temporary suspension of Board-conducted elections past April 3, 2020. Instead, it will resume conducting elections beginning on Monday, April 6, 2020.
On March 28, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division released an updated set of “Questions and Answers” (Q&As) that provide additional guidance concerning the impact of workplace closures and furloughs upon employers’ obligations to provide paid leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA).
As part of the Trump administration’s ongoing efforts to mitigate the impact of the novel coronavirus (and the illness it causes, COVID-19) pandemic, on March 20, 2020, the U.S. Department of the Treasury and the Internal Revenue Service (IRS) jointly announced in Notice 2020-18 that taxpayers affected by the pandemic now have until July 15, 2020, to file and pay their federal income taxes for 2019.