On April 9, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its Technical Assistance Questions and Answers titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” which addresses frequently asked questions from employers regarding compliance with various employment laws during the pandemic. Specifically, the EEOC provides guidance with respect to maintaining medical records, screening employees, providing accommodations, hiring employees and preventing pandemic-related harassment and discrimination.

Medical Inquiries, Examinations, and Information

The EEOC clarified that employers may ask employees if they are experiencing symptoms of COVID-19 and may take an employee’s temperature as provided by the Centers for Disease Control and Prevention (“CDC”). Further, employers can require an employee who has symptoms of COVID-19 to leave the workplace and stay home. Additionally, an employer may require an employee returning to work after being out for COVID-19 symptoms to provide a physician’s note certifying fitness for duty; however, employers should be aware that this may not be practical due to the current busyness of health care professionals. Accordingly, employers should be willing to accept other types of documentation, such as e-mails, indicating the employee does not have the virus. Medical information obtained by the employer, including the employee’s temperature or an employee’s self-identification of having the virus, should be kept separate from the employee’s personnel file but may be stored in an existing medical file.

The EEOC also stated that an employer may disclose the name of an employee who has COVID-19 to a public health agency. Similarly, a temporary staffing agency or contractor that places an employee in an employer’s workplace may notify the employer if it learns the employee has the virus.

Hiring and Onboarding

The EEOC made clear that an employer can take an applicant’s temperature as part of a pre-employment medical examination provided that the employer has made a conditional job offer to this individual. Likewise, an employer can screen applicants for symptoms of COVID-19 after making a conditional job offer; however, the employer must screen all entering employees in the same type of job or position.

If an applicant has COVID-19 symptoms, an employer can delay the start date of the applicant or withdraw the job offer if the employer needs the applicant to start immediately. However, an employer cannot withdraw a job offer solely on the basis that the individual is at a high risk for the virus, such as individuals 65 years old or older or pregnant women. According to the EEOC, the employer is permitted to ask the high-risk individual whether they would like to telework or postpone their start date.

Reasonable Accommodations

The EEOC also provides guidance in accommodating individuals with preexisting disabilities who are at a higher risk from COVID-19 but whose jobs can only be performed at the workplace. The EEOC suggests an employer can reduce an employee’s contact with others by making changes to the work environment by using plexiglass, tables or other barriers to ensure minimum distance between customers and/or co-workers. The EEOC also suggests providing flexibility to employees through temporary job restructuring of marginal job duties, temporary transfer to a different position, or modification of a work schedule or shift assignment in an effort to permit an individual with a disability to perform safely the essential functions of the job while reducing exposure in the workplace or while commuting.

Moreover, if an employee was already receiving a reasonable accommodation prior to the COVID-19 pandemic and now requests an altered or additional accommodation, the employer may discuss with the employee whether the same or a different disability is the basis for the new request and why an additional or altered accommodation is needed. Absent an undue hardship, the employee may be entitled to the additional or altered accommodation.

With respect to employees that are currently teleworking as part of a mandatory teleworking policy but may need a reasonable accommodation upon return to the workplace, the EEOC urges employers to engage in the interactive process now; therefore, if a request for an accommodation is granted, the employer can make some arrangements for the accommodation in advance.

Pandemic-Related Harassment

The EEOC recommended employers explicitly communicate to their workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of protected characteristics, such as race or national origin. The EEOC also cautioned employers that pandemic-related harassment due to national origin, race or other protected characteristics may arise in the workplace.

Takeaway for Employers

Although the EEOC provides specific support for following the CDC’s guidelines such as taking an employee’s or job applicant’s temperature or asking an employee whether they have symptoms related to COVID-19, the EEOC also made clear that the on-going pandemic does not void an employer’s obligation to comply with the ADA and other anti-discrimination laws. For instance, employers are still required to provide an employee with a reasonable accommodation if there is no undue hardship. Employers are still obligated to engage in the interactive process with employees, request medical support if needed, and document discussions related to the interactive process. Additionally, employers still must ensure their workforce does not engage in pandemic-related harassment whether its employees are teleworking or in the workplace. Finally, employers should be on the lookout for additional guidance on the interplay between CDC recommendations and the various disability and discrimination laws since the recommendations may change as the pandemic evolves.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.
Putney, Twombly, Hall & Hirson LLP

The Occupational Safety and Health Act (“OSHA”) and the implementing federal regulations (29 C.F.R. Part 1904) require employers to prepare and maintain records of occupational injuries and illness (the “OSHA Recordkeeping Requirements”).  20 C.F.R. § 1904.29.  Employers subject to the OSHA Recordkeeping Requirements must complete three forms to satisfy their recording obligations.  As detailed in our previous Client Alert, the United States Department of Labor (“U.S. DOL”) issued interim enforcement guidance on April 10, 2020, regarding the recording of COVID-19 cases pursuant to the OSHA Recordkeeping Requirements.  This Client Alert provides an overview of the OSHA Recordkeeping Requirements, including the recording of COVID-19 cases.

Employers Subject to the OSHA Recordkeeping Requirements

  • Employers in the following industries with 11 or more employees at any time during the previous calendar year must prepare and maintain OSHA records:
    • Agriculture, Forestry, and Fishing (SIC’s 01-02 and 07-09)
    • Oil and Gas Extraction (SIC 13 and 1477)
    • Construction (SIC’s 15-17)
    • Manufacturing (SIC’s 20-39)
    • Transportation and Public Utilities (SIC’s 41-42 and 44-49)
    • Wholesale Trade (SIC’s 50-5 1)
    • Building Materials and Garden Supplies (SIC 52)
    • General Merchandise and Food Stores (SIC’s 53 and 54)
    • Hotels and Other Lodging Places (SIC 70)
    • Repair Services (SIC’s 75 and 76)
    • Amusement and Recreation Services (SIC 79)
    • Health Services (SIC 80)

29 C.F.R. §§ 1904.1, 1904.2.

  • Employers with more than one establishment should combine the number of employees at each establishment to determine if they are subject to the OSHA Recordkeeping Requirements. 29 C.F.R. § 1904.1.
  • Employers in all other industries are exempt from the OSHA Recordkeeping Requirements, unless specifically requested by the U.S. DOL to maintain OSHA records. 29 C.F.R. § 1904.2; see 29 C.F.R. Appendix A.
  • However, all employers, regardless of size or industry, must report any workplace incident that results in an employee’s death, in-patient hospitalization, amputation, or loss of an eye to the Occupational Safety and Health Administration, even if the employer is not subject to the OSHA Recordkeeping Requirements. 29 C.F.R. § 1904.2.

The OSHA Log

  • An OSHA Form 300 – Log of Work-Related Injuries and Illness (the “OSHA Log”) must be prepared and maintained by employers subject to the OSHA Recordkeeping Requirements for each physical establishment that the employer expects to be operational for at least one year. See 29 C.F.R. §§ 1904.29, 1904.46.
    • For employers with employees working from home, OSHA does not consider each worker’s home to be an establishment for record-keeping purposes. 29 C.F.R. § 1904.46.
  • Basic Recording Requirements: Employers must record on the OSHA Log each injury and illness that:
    • Is work-related;
    • Is a new case; and
    • Satisfies one or more of the general recording criteria.

29 C.F.R. § 1904.4

  • Work-Related Injuries and Illness
    • Employers are only required to record work-related injuries and illnesses on the OSHA log. See 29 C.F.R. §§ 1904.4, 1904.5.
    • Work-Relatedness is determined by analyzing whether an event or exposure in the work environment
      • (1) caused or contributed to the resulting condition, or
      • (2) significantly aggravated a pre-existing injury or illness.

29 C.F.R. § 1904.5.

  • Events Or Exposures In The Work Environment Causing Or Contributing To Injuries And Illnesses.
    • Work-relatedness is presumed for injuries and illnesses caused by or resulting from events or exposures occurring in the work environment. 29 C.F.R. § 1904.5.
    • The OSHA regulations provide exceptions to the work-relatedness presumption. These exceptions include, but are not limited to:
      • the illness or injury is solely the result of an employee doing personal tasks unrelated to their employment at the workplace outside of the employee’s assigned working hours;
      • the illness or injury results solely from a non-work-related event or exposure that occurred outside the work environment but involves signs or symptoms that surfaced at work;
      • the employee was present in the workplace as a member of the general public;
      • the illness or injury is solely the result of an employee eating, drinking or preparing food or drink for personal consumption; or
      • the illness or injury is solely the result of personal grooming, self-medication for a non-work-related condition, or is intentionally self-inflicted.

29 C.F.R. § 1904.5(b)(2).

  • Events Or Exposures In The Work Environment Significantly Aggravating A Pre-Existing Injury or Illness.
    • An event or exposure in the work environment significantly aggravates a pre-existing injury or illness when the event or exposure results in one of the following, which would not have occurred but for the occupational event of exposure:
      • Death;
      • Loss of consciousness;
      • One or more days away from work, days of restricted work, or days of job transfer; or
      • Medical treatment that was not needed before the workplace event or exposure, or a change in medical treatment necessitated by the workplace event or exposure.

29 C.F.R. § 1904.5(b)(4).

  • Work-related injuries or illnesses can occur while employees are working from home if “the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting.” 29 C.F.R. § 1904.5(b)(4).
  • New Cases. An injury or illness is considered to be a “new case” if:
    • The employee has not previously experienced an injury or illness of the same type that affects the same part of the body; or
    • The employee previously experienced the same injury or illness but had recovered completely (all signs and symptoms had disappeared) and an event or exposure in the work environment caused the signs or symptoms to reappear.

29 C.F.R. § 1904.6.

  • General Recording Criteria. The following work-related injuries and illnesses meet OSHA’s general recording criteria and must be recorded on the OSHA Log:
    • Death
    • Loss of consciousness
    • Days away from work
    • Restricted work activity or job transfer
    • Medical treatment beyond first aid
    • A significant injury or illness diagnosed by a physician or other licensed health care professional, such as cases of cancer, chronic irreversible disease, a fractured or cracked bone, or a punctured eardrum that are work-related.

29 C.F.R. § 1904.7.

  • COVID-19.
    • An employee’s case of COVID-19 must be recorded on the OSHA Log if
      • The employee tests positive for COVID-19;
      • The case of COVID-19 is work-related; and
      • The case involves one or more of the above-listed general recording criteria.

See U.S. Dep’t of Labor, OSHA, Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) (Apr. 10, 2020).

  • However, the OSHA Recordkeeping Requirements for COVID-19 cases will only be enforced against healthcare employers, emergency response organizations, correctional institutions, and employers with reasonably available, objective evidence of a possible work-related cases of COVID-19.  Id.
  • Preparing and Maintaining the OSHA Log.
    • Employers are required to record work-related injuries or illnesses on the OSHA Log within 7 calendar days of receiving information that a recordable injury or illness occurred. 29 C.F.R. § 1904.29.
  • Recording Employee Names and Privacy Concern Cases.
    • The OSHA Log requires employers to record the employee’s name and job title, the date of the injury or onset of the illness, and the location where the event or exposure occurred.
    • Employers do not have to record the employee’s name on the OSHA Log if the injury or illness constitutes a “privacy concern case.”
      • For privacy concern cases, employers should enter “privacy case” in the space where the employee’s name would normally be entered.
      • Employers must keep a separate, confidential list of the case numbers and employee names for all privacy concern cases.

29 C.F.R. § 1904.29.

  • The following injuries and illnesses are privacy concern cases:
    • An injury or illness to an intimate body part or the reproductive system;
    • An injury or illness resulting from a sexual assault;
    • Mental illnesses;
    • HIV infection, hepatitis, or tuberculosis;
    • Needlestick injuries and cuts from sharp objects that are contaminated with another person’s blood or other potentially infectious material; and
    • Other illnesses, if the employee voluntarily requests that his or her name not be entered on the log.

29 C.F.R. § 1904.29.

  • Employers may not classify any other cases as privacy concern cases and may not remove the names of employees or any other information from the OSHA Log. 29 C.F.R. §§ 1904.29, 1904.35.

The OSHA Injury and Illness Incident Report

  • An OSHA Form 301 – Injury and Illness Incident Report (the “OSHA Form 301”) must be prepared and maintained for each work-related injury or illness that employers must record pursuant to the OSHA Recordkeeping Requirements. 29 C.F.R. § 1904.29.
  • Employers are required to complete an OSHA Form 301 for each recordable injury or illness within 7 calendar days of receiving information that a recordable injury or illness occurred. 29 C.F.R. § 1904.29.

The OSHA Summary

  • An OSHA Form 300A – Summary of Work-Related Injuries and Illnesses (the “OSHA Summary”) is an annual summary of all work-related injuries and illnesses.
  • At the end of each calendar year, employers must review and finalize their OSHA Log and use the OSHA Log to create an OSHA Summary. 29 C.F.R. § 1904.32.
  • Employers must post the OSHA Summary by February 1 of the following year and keep the posting in place until April 30. 29 C.F.R. § 1904.32.
  • Employers with an establishment of 250 of more employees and employers with an establishment of 20 or more employees, but fewer than 250 employees, must submit their OSHA Summary online to the Occupational Safety and Health Administration by March 2 of the year after the calendar year covered by the OSHA Summary. 29 C.F.R. § 1904.41.

Reporting Deaths and Other Severe Incidents to OSHA

  • All employers, regardless of size or industry, including those not subject to the OSHA Recordkeeping Requirements, must report:
    • the death of any employee as a result of a work-related incident to the Occupational Safety and Health Administration within 8 hours of learning of the employee’s death;
    • the in-patient hospitalization of an employee as a result of a work-related incident to the Occupational Safety and Health Administration within 24 hours of learning of the employee’s in-patient hospitalization; and
    • an employee’s amputation or loss of an eye as a result of a work-related incident to the Occupational Safety and Health Administration within 24 hours of learning of the incident.

29 C.F.R. § 1904.39.

  • Reports of deaths, in-patient hospitalizations, amputations, and losses of an eye may be made to the Occupational Safety and Health Administration by using one of the following methods:

See 29 C.F.R. § 1904.39.

Application to COVID-19 Cases

  • Employers subject to enforcement of the OSHA Recordkeeping Requirements must record an employee’s case of COVID-19, if the answer to all of the following questions is yes:
  1. Did the employee test positive for COVID-19?
  2. Was the employee’s case of COVID-19 work-related?
  3. Did the employee experience death, loss of consciousness, medical treatment beyond first aid, days absent from work, restricted work activity, job transfer, or significant injury or illness diagnosed by a healthcare professional?
  • For each recordable case of COVID-19, employers should enter the appropriate information on the OSHA Log and complete an OSHA Form 301
  • Employers should also include all recorded cases of COVID-19 in the employer’s OSHA Summary at the end of the calendar year.
  • All employers, regardless of size or industry, must report an employee’s case of COVID-19 to the Occupational Safety and Health Administration if:
    • the employee dies as a result of a work-related case of COVID-19;
    • the employee undergoes in-patient hospitalization as a result of a work-related case of COVID-19; or
    • the employee suffers an amputation or loss of an eye as a result of a work-related case of COVID-19.

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If you have any questions regarding this alert, please do not hesitate to contact us.
Putney, Twombly, Hall & Hirson LLP

On March 27, 2020, President Donald Trump signed into law the Coronavirus Aid, Relief and Economic Security Act (“CARES” or the “Act”), which provides emergency assistance and health care response for certain individuals, families, and businesses affected by the COVID-19 pandemic, including the Relief for Workers Affected by Coronavirus Act set out in Title II, Subtitle A of the Act.  See Client Alert – Coronavirus Aid, Relief and Economic Security Act – “CARES” Act, March 28, 2020.  The Act authorizes several unemployment insurance programs, including Pandemic Emergency Unemployment Compensation (“PEUC”), Pandemic Unemployment Assistance (“PUA”), and Federal Pandemic Unemployment Compensation (“FPUC”). This alert summarizes the additional guidance provided to states by the U.S. Department of Labor’s (“DOL”) Employment and Training Administration to operate the unemployment insurance provisions of the Act. The guidance is provided in various Unemployment Insurance Program Letters (“UIPL”) issued by the DOL in recent weeks.

I. Pandemic Emergency Unemployment Compensation (“PEUC”)

  1. 1.Eligibility

Section 2107 of the Act creates a temporary program through PEUC that provides up to 13 additional weeks of benefits to individuals who:

  • A have exhausted all rights to regular unemployment benefits through state or federal law;
  • have no rights to regular unemployment benefits under any other state or federal law;
  • are not receiving compensation under the unemployment compensation laws of Canada; and
  • are able to work, available to work, and actively seeking work, while recognizing that states must provide flexibility in meeting the “actively seeking work” requirement if individuals are unable to search for work because of COVID-19, including because of illness, quarantine or movement restrictions.
  1. Relation to Other Benefits

Federal Pandemic Unemployment Compensation (“FPUC”) is available to individuals receiving PEUC for weeks of unemployment ending on or before July 31, 2020.

  1. Determining Exhaustees

For purposes of PEUC eligibility, an individual is deemed to have exhausted benefits when:

  • no payments of regular unemployment compensation may be made under state law because the individual has received all regular unemployment compensation during the individual’s base period; or
  • the individual’s right to regular unemployment compensation has been terminated by reason of the expiration of the benefit year with respect to which such rights existed.

Exhaustees cease to be exhaustees when they can establish a valid new benefit year.  If the individual can establish a new benefit year in the filing state, the individual may not continue to collect PEUC. In that case, the individual should be instructed to file a claim for regular unemployment compensation. Once the claimant qualifies for a new regular unemployment insurance claim, payments on the PEUC claim must cease.  If the individual remains unemployed and otherwise eligible, the claimant may resume collection of the original PEUC after exhaustion of the second regular unemployment compensation claim, as long as the claimant has not already received 13 weeks of PEUC on the first claim.

  1. Dates of the PEUC Program

The PEUC program is available for weeks of unemployment beginning after the date on which the state enters into an agreement with the DOL, and ending with weeks of unemployment ending on or before December 31, 2020.

The program has a non-reduction rule, which prohibits states from changing the computation method for regular unemployment benefits in a way that results in a reduction of average weekly benefit amounts or the number of weeks of benefits payable.

  1. Processing PEUC Payments

For total unemployment:

  • the weekly benefit amount payable to an individual is equal to the amount of regular compensation payable to such individual during the applicable benefit year for a week of total unemployment under the applicable state law, and
  • the weekly amount of FPUC which is payable for weeks of unemployment ending on or before July 31, 2020.;

For partial unemployment:

  • the weekly benefit amount payable to an individual is equal to the amount of regular compensation payable to such individual during the applicable benefit year for a week of partial unemployment under the applicable state law, and
  • the weekly amount of FPUC which is payable for weeks of unemployment ending on or before July 31, 2020

The state must identify individuals who are potentially eligible for PEUC and provide them with appropriate written notification of their potential entitlement to PEUC, including filing instructions.  This includes notifying individuals who have established a claim with a benefit year ending after July 1, 2019, and who have either exhausted their entitlement or whose benefit year has expired.

In processing claims for PEUC, states must verify that claimants have no entitlement to regular unemployment compensation before processing the application for PEUC.  In situations where an individual may be eligible for PEUC in another state, assessing whether the individual is eligible for regular unemployment compensation in that state before establishing a PEUC claim can be complex.  When coordinating with other states to assess an individual’s eligibility, states should access the State Identification (SID) inquiry screen and/or the Interstate Benefit Inquiry (IBIQ) screen in the Interstate Connection Network (ICON) to check for claims and wages in other states.

When an individual files an initial claim for PEUC, the state agency promptly determines eligibility of the individual and, if eligible, the weekly and maximum benefit amounts of PEUC payable. If denied PEUC, the individual must be issued a determination that is appealable.

  1. Applicability of State Law Provisions

Except where inconsistent with the CARES Act, all terms and conditions of the state unemployment compensation law applicable to claims for regular unemployment compensation claims apply to claims for payment of PEUC.  States are reminded they may have flexibility in applying their requirements in light of efforts to mitigate COVID-19, in addition to specific flexibilities for the “actively seeking work” requirement.  Any temporary emergency flexibility measures that states have adopted for regular unemployment compensation claims are applicable to administration of PEUC.

  1. Nonreduction Rule

The program prohibits states from changing the computation method for regular unemployment benefits in a way that results in a reduction of average weekly benefit amounts or the number of weeks of benefits payable.

  1. Funding

Under the CARES Act, each state that has entered into an agreement with the Secretary to pay PUA will be paid an amount equal to 100% of the amount of PEUC paid to individuals by the state under the agreement.  States will request funds from the Extended Unemployment Compensation Account to pay all PEUC benefits.  All requests go through the Automated Standard Application for Payments (“ASAP”) system.

II. Pandemic Unemployment Assistance (“PUA”):

  1. Eligibility

Section 2102 of the Act provides for payment of up to 39 weeks of PUA to individuals who are self-employed, seeking part-time employment, lack sufficient work history, or those who otherwise would not qualify for regular unemployment benefits under state or federal law or under PEUC. It also covers individuals who have exhausted all rights to regular unemployment benefits under state or federal law, or under PEUC.

Individuals must demonstrate that they are otherwise able to work and available for work within the meaning of applicable state unemployment insurance law, except that they are unemployed, partially unemployed, or unable or unavailable to work because of the following COVID-19 related reasons specified in section 2102 of the Act:

a. The individual has been diagnosed with COVID-19, is experiencing symptoms and is seeking a medical diagnosis. Examples include:

    • an individual who has quit his or her job as a direct result of positive test for COVID-19 or diagnosis of COVID-19 by a qualified medical professional, and continuing work activities is not possible;
    • an individual who has quit his or her job due to coming in direct contact with someone who has tested positive for COVID-19 and, on advice of a qualified medical health professional is required to resign in order to quarantine.

b. A member of the individual’s household has been diagnosed with COVID-19. For example:

  • a member of the individual’s household has been diagnosed as having COVID-19 by a qualified medical professional, or a member of the individual’s household has tested positive for COVID-19, and the individual is unable to work as a result.

c. The individual is caring for a family member or a member of the household who has been diagnosed with COVID-19. For example:

  • an individual is “providing care” for a family member or a member of the household if the provision of care requires ongoing and constant attention that the individual’s ability to perform other work functions is severely limited. A family member who is able to adequately care for him or herself does not qualify.

d. The individual is the primary caregiver to a child or other person in the household who is unable to attend school or another facility that is closed as a direct result of COVID-19 concerns. For example:

  • an individual has “primary caregiving responsibility” for a child or other person in the household if he or she is required to remain at home to care for the child or other person.
  • this includes an individual whose job allows for telework, but for whom the provision of care to the child or person with a closed school or other facility requires such ongoing and constant attention that it is not possible to perform work at home.

e.The individual is unable to go to the workplace because of a quarantine imposed due to COVID-19 concerns. For example:

  • an individual who is unable to reach the place of employment because doing so would require a violation of a state or municipal order restricting travel that was instituted to combat the spread of COVID-19.

f. The individual is unable to go to the workplace on advice of a health care provider to self-quarantine due to COVID-19 concerns. Examples include:

  • an individual who has had direct contact with another person who has tested positive for COVID-19 or diagnosed with COVID-19 by a qualified medical professional, and is advised by a health care provider to self-quarantine to prevent further possible spread of the virus.
  • an individual whose immune system is compromised by virtue of a serious health condition and is therefore advised by a health care provider to self-quarantine in order to avoid the greater-than-average health risks that the individual might face if he or she were to become infected with COVID-19.

g. The individual was scheduled to start employment but does not have a job or cannot get to the job because of COVID-19. For example:

  • an individual is unable to reach the job because doing so would required violation of a state or municipal order restricting travel that was instituted to combat the spread of COVID-19, or the employer has closed the place of employment.
  • an individual does not have a job because the employer has rescinded the job offer as a direct result of the COVID-19 public health emergency.

h. The individual has become the breadwinner (or provides major support) because the head of household as died due to COVID-19. For example:

  • an individual whose head of household previously contributed the majority of financial support to the household died as a direct result of COVID-19, and the individual is now the person in the household expected to provide such financial support.

i. The individual had to quit his/her job because of COVID-19. For example:

  • an individual was diagnosed with COVID-19 by a qualified medical professional, and although the individual no longer has COVID-19, the illness caused health complications that render the individual objectively unable to perform his or her essential job functions, with or without a reasonable accommodation.

j. The individual’s workplace is closed because of COVID-19. For example:

  • if a business is shut down due to an emergency declaration or due to necessary social distancing protocols, the unemployment of individuals who worked in the business would be considered a direct result of COVID-19.

k. The individual meets any additional criteria established by the Secretary for unemployment assistance under this section. For example:

  • an individual who works as an independent contractor with reportable income may qualify for PUA benefits if he or she is unemployed, partially employed, or unable or unavailable to work because the COVID-19 public health emergency has severely limited his or her ability to continue performing his or her customary work activities, and has thereby forced the individual to suspend such activities. For example, a driver for a ridesharing service who has been forced to suspend operations as a direct result of the COVID- 19 public health emergency, such as if an emergency state or municipal order restricting movement makes continued operations unsustainable.

States should bear in mind that many of the qualifying circumstances are likely to be of short-term duration.  As such, the expectation is that states will continue to apply their able, available, and actively seeking work standards as outline in state law.

 

  1. Relation to Other Benefit Payments

Section 2102 of the Act requires, as a condition of PUA eligibility, that an individual not be eligible for regular compensation or extended benefits under state or federal law or PEUC, or to have exhausted all rights to regular unemployment benefits under state or federal law or PEUC.

The $600 FPUC payments provided under section 2104 of the Act are to be added to the PUA.

PUA is generally not available to individuals who have the ability to telework with pay, or who are receiving paid sick leave or other paid leave benefits. However, an individual receiving paid sick leave or other paid leave benefits for less than his or her customary work week may still be eligible for a reduced PUA.  The state must treat any paid sick leave or paid leave by a claimant in accordance with the income restrictions set out in Disaster Unemployment Assistance (“DUA”) at 20 C.F.R. 625.13.

  1. Determining Exhaustees

A PUA claimant ceases to be regular unemployment compensation, PEUC and EB exhaustee when he or she can establish a valid new benefit year.  If an individual is no longer an exhaustee, the individual will no longer receive PUA benefits.  In these cases, the claimants should be advised that they may file a regular unemployment benefits claim or PEUC or EB claim.

  1. Dates of the PUA Program

The PUA provides for up to 39 weeks of unemployment insurance benefits, and is available for weeks of unemployment beginning on or after January 27, 2020 and ending on or before December 31, 2020.

  1. Processing PUA Payments

Section 2102(d) of the Act requires the state to pay individuals the unemployment benefits under the law of the state where the covered individual was employed, plus the $600 FPUC payment.

In processing claims for PUA, states must verify that individuals have no entitlement to regular unemployment insurance. If the individual’s eligibility for regular unemployment insurance is questionable, then the state must first require the individual to file an initial claim for regular unemployment insurance.  If the individual is subsequently disqualified, then the state may consider the individual for PUA eligibility.

States are required to ensure the efficacy and integrity of the self-certification process by:

  • including information on the self-certification form that the claimant completes, including an acknowledgement that the claimant understands that the certification is made under penalty of perjury, and information that advises the claimant that intentional misrepresentation is fraud.
  • provide clear messaging on-line that claimants may be subject to criminal prosecution if they are found to have committed fraud.

The terms and conditions of the state law for an individual’s claim for regular unemployment compensation apply to the payment of PUA to individuals.  To determine the amount payable for a week of partial unemployment, the state will calculate the payment amount in accordance with the state law applicable to such a week of unemployment.

When an individual files an initial claim for PUA, the state agency must determine promptly the eligibility of the individual and, if eligible, the weekly and maximum amounts of PUA payable.  If denied PUA, the individual must be issued an appealable determination.

  1. Funding

Under the CARES Act, each state that has entered into an agreement with the Secretary to pay PUA will be paid an amount equal to 100% of the amount of PUA paid to eligible individuals by the state under the agreement.  States will request funds from the Extended Unemployment Compensation Account through the ASAP system.

III. Federal Pandemic Unemployment Compensation (“FPUC”):

  1. Eligibility

Section 2104 of the Act provides payment of FPUC of an additional $600 per week to individuals who are collecting regular unemployment compensation, PUA, PEUC, Extended Benefits (“EB”) as defined under the Federal-State Extended Unemployment Compensation Act of 1970, and other similar benefits.

If the individual is eligible to receive at least one dollar ($1) of underlying benefits for the claimed week, the claimant will receive the full $600 FPUC.

  1. Relation to Other Benefit Payments

Individuals receive FPUC payments concurrently with payments under the other programs discussed above.

  1. Dates of the FPUC Program

FPUC is available for weeks of unemployment beginning after the date on which the state enters into an agreement with the DOL, and ending with weeks of unemployment ending on or before July 31, 2020.

  1. Nonreduction Rule

The program prohibits states from changing the computation method for regular unemployment benefits in a way that results in a reduction of average weekly benefit amounts or the number of weeks of benefits payable.

  1. Disregard of FPUC for Purposes of Medicaid and State Children’s Health Insurance Program (SCHIP)

The monthly equivalent of any FPUC amount paid to an individual must be disregarded when determining income for any purpose under programs established under Titles XIX and Title XXI of the Social Security Act.

  1. Processing Payments for FPUC

The state must notify a potentially eligible individual of his or her entitlement to FPUC, although states have flexibility in the method of providing notification.  The notification should include both the beginning and ending dates for the FPUC program.  States will decide eligibility for FPUC based on eligibility for the underlying program eligibility.  Individuals do not have to separately apply for FPUC.

States have flexibility in how they issue FPUC payments.  States may pay the additional $600 either as an amount which is paid at the same time and in the same manner as any regular unemployment compensation payable for the week or, at the option of the state, by payments which are made separately from, but on the same weekly basis as, any regular unemployment compensation otherwise payable.

Child support obligations must be deducted from FPUC payments in the same manner and to the same extent as these obligations are deducted from regular unemployment compensation.

The $600 FPUC is taxable. Therefore, states must include FPUC when preparing 1099Gs and withhold taxes from the weekly benefit amount and from the $600 FPUC, when an individual elects to have taxes withheld

Except where inconsistent with the CARES Act, all terms and conditions of the state unemployment benefit law applicable to claims for and payment of regular unemployment compensation apply to the payment of FPUC.  An individual is not entitled to receive FPUC for a week in which the individual is not eligible for regular unemployment benefits or the underlying benefit from another federal program.

  1. Funding

The cost of these additional $600 payments to eligible individuals each week is 100% federally funded.  States may not charge employers for any FPUC benefits paid.  States that are unable to immediately pay benefits the week following the execution of the agreement with the DOL to operate the program must provide retroactive payments to individuals eligible for FPUC for the weeks they would have been entitled.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.
Putney, Twombly, Hall & Hirson LLP

All of us at Putney hope that all of our clients and their families are well and safe during this difficult period. We also want you to know that all of us are working remotely and can continue to assist you and your families with any estate administration and planning needs.

We would also like to let you know about certain tax relief provisions that have been enacted at the federal and state levels.

Tax Return Filing and Payment

The United States Department of the Treasury has announced that all tax payments and filings otherwise due between April 1, 2020 and July 15, 2020 are automatically extended to July 15, 2020. This includes individual, businesses, estates and trusts, as well as federal estate, gift and generation skipping tax filings and payments. The extension is automatic. No interest or penalties will be imposed so long as the payments and filings are made on or before July 15, 2020.

New York State has also extended their payment and filing deadlines to July 15, 2020 for personal, fiduciary and business income taxes but not for the filing or payment of transfer taxes.

For New Jersey, Income payments and filing originally due on April 15, 2020 have been extended to July 15, 2020. However, the 2nd quarter estimated tax payments remain due on June 15, 2020. The due dates for filing inheritance and estate returns and any payment thereof have not been extended.

Connecticut filing and payment extension deadlines have been extended to July 15, 2020 for individual, business, fiduciary income tax and for gift taxes but not for estate tax filings or payments.

The Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”)

The CARES Act provides for payments of a tax credit of up to $1200 per individual, subject to income limitations. The credit phases out for individual filers with an adjusted gross income of $75,000, for head of household filers at $112,500 and for married filing jointly taxpayers at $150,000. In order to receive the credit, a taxpayer must file either file a 2019 individual income tax return (Form 1040), have filed an individual income tax return for 2018 or received a Social Security Benefit Statement.

The CARES Act also provides an exception to the 10% early withdrawal penalty for “coronavirus related distributions” up to $100,000 from retirement plan distributions.

Coronavirus distributions are defined as “distributions from an eligible retirement plan” made in 2020 to a person diagnosed with COVID-19 or whose spouse or dependent has been diagnosed with COVID-19 or who has “experienced adverse financial consequences” as a result of the virus. Income is recognized over 3 years unless the taxpayer recontributes the funds within 3 years.

Minimum distribution requirements for most retirement plans are suspended during 2020 – other than for distributions that have already been made in 2020. The suspension does not apply to individual retirement accounts and some defined contribution plans.

For gifts to charities, the CARES Act provides for an above-the-line deduction up to $300 for cash charitable contributions made by a taxpayer who does not itemize. Income limits for individual and corporate cash contributions to qualified charities (but not to foundations or donor-advised funds) are suspended.

For further information, please feel free to contact any of the attorneys in our Trusts & Estates Department.

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If you have any questions please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

On April 10, 2020, the United States Department of Labor (“U.S. DOL”) issued interim enforcement guidance (the “Guidance”) regarding the recording of COVID-19 cases pursuant to the Occupational Health and Safety Act (“OSHA”). The Guidance sets forth different enforcement policies for employers in the healthcare industry (“healthcare employers”), emergency response organizations, and correctional institutions as compared to all other employers. The Guidance also provides information regarding those cases of COVID-19 that must be recorded pursuant to OSHA for employers whose recording obligations will be enforced.

The Enforcement of OSHA Recording Requirements For COVID-19 Cases

According to the Guidance, the U.S. DOL will continue to enforce the OSHA recording requirements for COVID-19 cases for employers who employ healthcare workers, emergency response workers (e.g., emergency medical workers, firefighters, and law enforcement officers), and workers at correctional institutions. As such, these employers must determine whether cases of COVID-19 among employees are work-related and follow the OSHA recording requirements for qualifying COVID-19 cases.

On the other hand, the Guidance provides that the U.S. DOL will not enforce the OSHA recording requirements for COVID-19 cases for employers–other than healthcare employers, emergency response organizations, and correctional institutions–located in “areas where there is ongoing community transmission” of COVID-19, except under specific circumstances. Employers are required to determine the work-relatedness of COVID-19 cases and abide by the OSHA recording requirements for qualifying COVID-19 cases where: (1) there is objective evidence that a COVID-19 case may be work-related, and (2) such evidence is reasonably available to the employer. The Guidance provides that objective evidence includes a situation where multiple cases of COVID-19 “arise among workers who work closely together without an alternative explanation.” The Guidance also provides examples of reasonably available evidence, including “information given to the employer by employees,” and where an employer learns information about its employees’ health and safety during the ordinary management its business and employees.

Recording COVID-19 Cases Pursuant to OSHA

The Guidance provides that COVID-19 is a recordable illness under OSHA. This means that healthcare employers, emergency response organizations, correctional institutions, and other employers who meet the above-described exception must record cases of COVID-19 when:

  1. An employee tests positive for COVID-19;
  2. The case of COVID-19 is work-related; and
  3. The case involves one or more of the general recording criteria.

Employers should note that since COVID-19 constitutes an illness under OSHA, employers must comply with employees’ voluntary requests that their names not be recorded on the OSHA Form 300 log. 29 C.F.R. § 1904.29(b)(7)(vi).

Work-Relatedness

To determine whether a case of COVID-19 is work-related, employers must analyze whether an event or exposure in the work environment (1) “caused or contributed to the resulting condition,” or (2) “significantly aggravated a pre-existing injury or illness.” 29 C.F.R. § 1904.5.

Work-relatedness is presumed for injuries and illnesses, including cases of COVID-19, which result from events or exposures occurring in the work environment, unless an exception proscribed by the federal regulations applies. Id. Exceptions to the work-relatedness presumption include.

  1. the illness or injury is solely the result of an employee doing personal tasks unrelated to their employment at the workplace outside of the employee’s assigned working hours;
  2. the illness or injury results solely from a non-work-related event or exposure that occurred outside the work environment but involves signs or symptoms that surfaced at work;
  3. the employee was present in the workplace as a member of the general public;
  4. the illness or injury is solely the result of an employee eating, drinking or preparing food or drink for personal consumption; or
  5. the illness or injury is solely the result of personal grooming, self-medication for a non-work-related condition, or is intentionally self-inflicted.

29 C.F.R. § 1904.5(b)(2).

An illness or injury is significantly aggravated, requiring recording under OSHA, when an event or exposure in the work environment results in one of the following, which would not have occurred but for the occupational event of exposure:

  1. Death;
  2. Loss of consciousness;
  3. One or more days away from work, days of restricted work, or days of job transfer; or
  4. Medical treatment that was not needed before the workplace event or exposure, or a change in medical treatment necessitated by the workplace event or exposure.

29 C.F.R. § 1904.5(b)(4).

Employers who have temporarily transitioned their employees to remote work should note that employees may incur work-related illnesses and injuries while working from home. An illness or injury that occurs while an employee is working from home is considered work-related under OSHA if “the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting.” 29 C.F.R. § 1904.5(b)(4).

The General Recording Criteria

The general recording criteria, triggering employers recording obligations under OSHA, is satisfied if an injury or illness, including a case of COVID-19, results in one or more of the following:

  1. Death
  2. One or more days away from work
  3. Restricted work or transfer to another job
  4. Medical treatment beyond first aid
  5. Loss of consciousness
  6. A significant injury or illness diagnosed by a physician or other licensed healthcare professional.

29 C.F.R. § 1904.7

TAKEAWAY FOR EMPLOYERS

Healthcare employers, emergency response organizations, correctional facilities, and employers with reasonably available, objective evidence of a possible work-related case of COVID-19 should continue to make determinations as to whether cases of COVID-19 among employees are work-related and abide by the OSHA recording requirements for all qualifying cases. All other employers are provided a temporary reprieve from their obligation under OSHA to determine the work-relatedness of COVID-19 cases and corresponding recording requirements.

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If you have any questions regarding the requirements for employers to record COVID-19 cases in compliance with OSHA, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

On April 1, 2020, the National Labor Relations Board (the “Board”) finalized a new rule on the union election process, revising its policies concerning blocking charges, voluntary bars, and the process by which unions in the construction industry may establish majority support. Our client alert on the Board’s final rule can be found here. Due to the ongoing national emergency caused by the coronavirus pandemic, the Board has postponed the June 1, 2020, effective date by 60 days. The new effective date is July 31, 2020.

The Board determined that a delayed effective date is required to allow the Board’s employees and stakeholders to focus on continuity of their operations during the coronavirus pandemic, rather than on implementing and understanding the Board’s new rule. The Board dispensed with notice and comment procedures in delaying the effective date of the final rule pursuant to the Administrative Procedure Act (“APA”). Under Section 553(b)(3)(B) of the APA, an agency may issue a final rule without seeking comment prior to rulemaking upon finding of “good cause” that those procedures are “impracticable, unnecessary, or contrary to public interest.” In dispensing with notice and comment procedures to delay the effective date of the final rule, the Board reasoned that: (1) given the ongoing pandemic and national emergency, regulated entities should be focused on mitigating that pandemic’s serious ramifications and on understanding their significant responsibilities and obligations under the pandemic relief laws enacted by Congress in the last month; and (2) proceeding directly to the final rule is appropriate because the change is a minor, technical correction.

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

On April 2, 2020, the State of New York passed its budget for the 2021 fiscal year, which included important additions to the State’s paid sick leave laws. As we previously alerted, on March 18, 2020, in response to the COVID-19 virus, New York passed an emergency paid sick leave law. The new state budget enacts a permanent paid sick leave program for working New Yorkers. The program is set to go into effect at the beginning of next year.

Under the new law, workers will accrue one hour of paid sick time for every 30 hours worked. This is the same accrual rate utilized by New York City and Westchester county. Employers who employ 100 or more workers must provide at least 56 hours of paid sick leave per year. Employers with between 5 and 99 employees must provide at least 40 hours of paid sick leave per year. Employers with four or fewer employees will be exempt from paying sick time, but must guarantee 40 hours of job-protected unpaid sick leave to their employees every year. New York State’s new sick leave program guarantees most employees in the State the right to paid time off from work. The law will work in concert with existing city and municipal paid sick leave laws. If a local paid sick leave program provides greater benefits than the new program, an employee would be entitled to the former. Under the new law, the paid leave obligations of most New York City and Westchester county employers will remain the same, but employers of over 100 employees throughout the State will have to grant their employees at least 16 additional hours of paid sick leave per year

 

Takeaway for Employers

Employers are encouraged to review their existing paid sick leave programs for compliance with the law before it goes into effect on January 1, 2021.

 

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If you have any questions concerning this alert, please do not hesitate to contact us

Putney, Twombly, Hall & Hirson LLP

To qualify for paid leave pursuant to the New York Emergency Paid Sick Leave or New York Emergency Paid Family Leave, employees must obtain a mandatory or precautionary order issued by the State of New York, the Department of Health, a local board of health, or any government entity authorized to issue such orders due to COVID-19.

The New York State Department of Health (“NYDOH”) has recently issued guidance on how employees may obtain orders of quarantine and isolation. See NYSDOH’s Obtaining An Order and New York Paid Family Leave COVID-19: Frequently Asked Questions. Critically, the NYDOH guidance provides that employees may submit documentation from a healthcare provider while waiting to receive an order of quarantine or isolation from their local board of health. However, an order or quarantine or isolation is still required for employees to be entitled to paid leave under the New York Emergency Paid Sick Leave or New York Emergency Paid Family Leave.

In the guidance, the NYDOH instructs employees to first contact their local health department to obtain obtain an order of quarantine or isolation. Local health departments are required to provide requested orders of quarantine or isolation within 30 days.

The NYDOH further advises that if employees are unable to obtain an order of quarantine or isolation from their local health department immediately, employees should submit documentation from a licensed medical provider that has treated the employee or the employee’s minor dependent child in the interim.

The documentation from the healthcare provider must attest to the following:

  • the employee qualifies for a mandatory order of isolation because (1) the employee has tested positive for COVID-19, or (2) the test for COVID-19 is currently unavailable to the employee, but the employee is symptomatic and has had contact with a known COVID-19 case;
  • the employee qualifies for a mandatory order of quarantine because the employee (1) has been in close contact with an individual who has tested positive for COVID-19 or is currently under mandatory isolation, or (2) is symptomatic and has returned from a country designated with a level 2, 3, or 4 advisory for COVID-19 within the past 14 days; or
  • the employee qualifies for a precautionary quarantine because the employee (1) is determined to have had proximate exposure with someone who has tested positive for COVID-19, or (2) is asymptomatic and has returned from a country designated with a level 2, 3, or 4 advisory for COVID-19 within the past 14 days.

After employees submit their medical documentation, employees are required to follow-up with their local board of health regarding their requested order of quarantine or isolation. Once the order has been obtained, employees must provide the order as soon as possible to qualify for paid leave.

Takeaway for Employers

Employers should permit employees to take paid sick leave pursuant to New York Emergency Paid Leave or New York Emergency Paid Family Leave once provided with medical documentation compliant with the above-listed requirements as employees may not be able to immediately obtain orders of quarantine or isolation. However, employers may still require employees to submit orders of quarantine or isolation issued by their local board of health.

 

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If you have any questions regarding the requirements for employees to be entitled to paid leave under New York Emergency Paid Sick Leave or New York Emergency Paid Family Leave, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

On March 27, 2020, in light of the many issues employers are facing during the COVID-19 pandemic, the National Labor Relations Board’s (the “Board”) General Counsel, Peter B. Robb, issued Memorandum GC 20-04 ( the “Memorandum”) on a unionized employer’s duty to bargain in emergency situations. Although the Memorandum does not provide specific advice, the Memorandum contains summaries of decisions in which the Board considered an employer’s duty to bargain in emergencies, including public emergencies and emergencies unique to a particular employer.

Under the National Labor Relations Act (“NLRA”), an employer is required to bargain with its employees’ union representatives concerning mandatory subjects of collective bargaining such as wages, hours of work, and layoffs. Specifically, employers cannot take unilateral action regarding mandatory subjects of collective bargaining without first reaching agreement with the employees’ union representatives or reaching an impasse in negotiations.

Exceptions to an Employer’s Duty to Bargain

The decisions cited in the Memorandum reiterate the Board’s standard in Bottom Line Enterprises, 302 NLRB 373, 374 (1991), that an exception to the duty to bargain exists where the employer can demonstrate that economic exigencies compelled prompt action and such exception is limited to extraordinary events that are an unforeseen occurrence having a major economic impact requiring the employer to take immediate action.

Although the determination is fact specific, the Board held that employers did not have a duty to bargain with respect to their unilateral decisions to layoff employees during certain public emergencies, such as a mandatory city evacuation in a hurricane or in the aftermath of 9/11. Similarly, the Board found exceptions to the duty to bargain with respect to emergencies unique to the employer where the situation was unforeseen and had a major economic effect, such as an employer’s credit line being discontinued. However, in several cases the Board found that an employer had a duty to bargain where the decision was not based on an unforeseen occurrence, including chronic problems of which the employer was aware.

Regardless of the type of emergency and whether the decision constitutes an exception to the duty to bargain under the NLRA, the employer is still required to bargain over the effects of its decision.

Takeaway for Employers

Employers with unionized workforces that are faced with the prospect of taking unilateral actions in response to the COVID-19 pandemic, such actions that are normally subject to bargaining, should carefully review whether these actions are the result of economic exigencies that are unforeseen and need to be implemented immediately. If employers take such actions without consulting with the union, employers should immediately notify the union of the actions taken and offer to bargain with the union regarding the effects of these actions.

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

On March 27, 2020, President Donald Trump signed into law the Coronavirus Aid, Relief and Economic Security Act (“CARES” or the “Act”) providing financial resources for individuals, families and small businesses affected by COVID-19, as well as making several key policy changes impacting health care providers. This alert highlights the main provisions of CARES, including the topics of cash assistance to individuals, expansion of unemployment benefits, funds available to businesses adversely affected by COVID-19, healthcare relief and grants and tax credits available under the Act.

Cash Assistance to Individuals

The Act provides funding for $1,200 tax rebates to individuals, with additional $500 payments per qualifying child. The rebate begins phasing out when incomes exceed $75,000 (or $150,000 for joint filers).

  • Eligible individuals receive either a cash disbursement or a refundable tax credit in the amount of:
    • $1,200 for individuals; or
    • $2,400 for individuals filing jointly; plus
    • $500 for each qualifying child.
  • The cash disbursement or refundable tax credit is reduced by 5 percent of any income over:
    • $75,000 for individuals (phases out at $99,000);
    • $150,000 for individuals filing jointly (phases out at $198,000); and
    • $112,500 for individuals filing as head of household (phases out at $136,500).
  • Income is based off of 2019 tax returns.
    • For individuals who have not yet filed a tax return for 2019, tax returns for 2018 will apply.
    • For individuals who have not yet filed a tax return for 2018, information provided in a 2019 Social Security Benefit Statement or a 2019 Social Security Equivalent Benefit Statement may be used.
    • Individuals who have not yet filed a tax return for 2019 or 2018, and do not have a 2019 Social Security Benefit Statement or 2019 Social Security Equivalent Benefit Statement, will receive a refundable tax credit against their 2020 income tax instead of a cash disbursement.

**Note: individuals should file 2019 taxes in order to qualify for a cash disbursement.

  • To be eligible, individuals must be citizens or permanent residents, and cannot be classified as dependents.
  • Cash disbursements will be made as soon as possible and no later than December 31, 2020.
  • Payments may be disbursed electronically to any account the individual authorized for receipt of tax refunds on or after January 1, 2018.
  • Notice of payment will be sent to the eligible taxpayer’s last known address no later than 15 days after payment.
  • A valid social security number must be included on tax returns.

Unemployment Benefits Expansion

The unemployment insurance provisions of the Act known as the Relief for Workers Affected by Coronavirus Act, among other things, increases the weekly maximum benefit by $600 per week until July 31, 2020, and increases the duration of payments to 39 weeks. The Act also extends unemployment benefits to previously ineligible workers including self-employed workers, workers seeking part-time work, workers who cannot reach their workplace as a result of COVID-19, as well as those who do not have sufficient work history to otherwise qualify for unemployment benefits:

Federal Pandemic Unemployment Compensation

The Act provides for an emergency increase in unemployment compensation benefits for individuals in any State that enters into an agreement with the Secretary of Labor.

Amount of Benefit. Covered individuals will receive weekly:

  • The amount of unemployment compensation determined by State law (NY caps at $504 per week); plus
  • An additional amount of $600, referred to as the “Federal Pandemic Unemployment Compensation.”
  • This additional benefit expires on or before July 31, 2020.

Federal Pandemic Emergency Unemployment Compensation

The Act also extends these benefits to individuals who are no longer eligible because they have exhausted their regular unemployment compensation and would not qualify for a particular week.

Eligibility

  • Must have exhausted all rights to regular compensation under State law or Federal law in the benefit year.
  • Must have no rights to regular compensation during a week under State unemployment compensation law or other Federal law.
  • Must not be receiving compensation during a week under the unemployment compensation law of Canada.
  • Must be able and available to work and is actively seeking work.

Amount of Benefit. Covered individuals will receive weekly:

  • The amount of regular unemployment compensation payable to the individual during the benefit year under State law for a week of total unemployment; plus
  • The amount of Federal Pandemic Unemployment Compensation (or $600 per week)

Expands Coverage

  • Covered individuals under the Act include those who are not eligible for regular compensation or extended benefits under State law, Federal law or pandemic emergency UI under section 2107 (or has exhausted all such benefits), and provide self-certification that they otherwise able and are available for work, except that the individual is unemployed, partially unemployed, or unavailable to work because:
  • The individual has been diagnosed with COVID-19, is experiencing symptoms and is seeking a medical diagnosis.
  • A member of the individual’s household has been diagnosed with COVID-19.
  • The individual is caring for a family member or a member of the household who has been diagnosed with COVID-19.
  • The individual is the primary caregiver to a child or other person in the household who is unable to attend school or another facility that is closed as a direct result of COVID-19 concerns.
  • The individual is unable to go to the workplace because of a quarantine imposed due to COVID-19 concerns.
  • The individual is unable to go to the workplace on advice of a health care provider to self-quarantine due to COVID-19 concerns.
  • The individual was scheduled to start employment but does not have a job or cannot get to the job because of COVID-19.
  • The individual has become the breadwinner (or provides major support) because the head of household as died due to COVID-19.
  • The individual had to quit his/her job because of COVID-19.
  • The individual’s workplace is closed because of COVID-19.
  • The individual meets additional criteria established by the Secretary for UI assistance.
  • Covered individuals also include those not eligible for regular compensation or extended benefits under State, Federal or pandemic emergency UI, and:
    • Is self-employed.
    • Is seeking part-time employment.
    • Does not have sufficient work history.
    • Otherwise would not qualify for regular UI or extended benefits under State or Federal law or pandemic emergency UI under section 2107.
    • Individuals Not Covered:
    • Individuals who can telework, with pay; or
    • Individuals receiving paid sick leave or other paid leave benefits, regardless of whether they are otherwise eligible.
    • Actively Seeking Work Defined

To be eligible for benefits, individuals must be actively seeking work, which includes the following:

  • registered for employment services
  • has engaged in an active search for employment
  • has maintained a record of such work search
  • when requested, has provided work search records to the State agency.However, the Act provides that States must give individuals flexibility in meeting the requirements due to inability to search for work because of illness, quarantine or other movement restrictions.

Extends Duration of Benefits

  • Covered individuals may receive unemployment benefit assistance while unemployed, partially employed, or unable to work for the weeks of such unemployment, and while not entitled to any other unemployment compensation, as follows:
  • Total number of weeks of assistance is increased to 39 weeks, which includes any weeks a covered individual received regular State benefits.
  • Waiver of any State waiting period.
  • Beginning on or after January 27, 2020, and ending on or before December 31, 2020.

Application to Other Compensation

  • The additional $600 benefit received each week from the expanded coverage would count as income and may disqualify individuals for eligibility for other means-tested programs, except it is disregarded for Medicaid and the Children’s Health Insurance Program (CHIP).

Corporate Funding/SBA Loans

Another core piece of the Act is the provision of $349 billion for small businesses through federally backed loans under a modified and expanded Small Business Administration (SBA) 7(a) loan guaranty program called the Paycheck Protection Program. The program has been designed to make funds available to qualifying businesses quickly through approved banks and nonbank lenders, such as credit unions.

  • Under the Act, qualifying businesses include:
    • Businesses with up to 500 employees or which meet the applicable size standard for the industry as provided by SBA’s existing regulations.
    • Businesses in the accommodation and food services industries with more than one physical location but no more than 500 employees at each location.
    • Nonprofit organizations.
    • Eligible independent contractors and sole proprietors with supporting 1099 or payroll tax filing information.
  • Loans will be available through SBA and Treasury approved banks, credit unions, and some nonbank lenders.
  • The time period for the “covered loan” is the period from February 15, 2020, ending June 30, 2020. The loan must be applied for prior to June 30, 2020.
  • Borrowers can borrower 2.5 times their monthly payroll expenses, up to $10 million with an interest rate not to exceed 4%, deferred payments and a maximum maturity of 10 years.
  • Applicable uses for the loan proceeds include: (1) qualified payroll costs; (2) rent; (3) utilities; and (4) interest on mortgage and other debt obligations. However, employees earning in excess of $100,000.00 are excluded.
  • Loan forgiveness is available for funds used to pay 8 weeks of payroll and other qualified expenses. The amount of the forgiveness of the loan will be excluded from gross income to the employer.
  • Loan forgiveness may be reduced by the number of full-time employees who are laid off during the “covered period,” as compared to the number of full-time employees employed from January 1, 2020 to February 29, 2020. The amount of forgiveness may also be reduced by the amount of reductions in total salary or wages of the employees during the covered period as compared to the most recent full quarter during which the employee was employed prior to the covered period.
  • Businesses receiving loans must use the money within two months to obtain forgiveness. Notably, the employer cannot pay any employee more than $10,000 in those two months, or the portion of the forgiven amount may be reduced.
  • An employer may also receive forgiveness for additional wages paid to tipped employees during the covered period.
  • If a company laid off and shut down its operations due to the crisis, it may still be eligible for the SBA loans on the terms above, though not forgiveness of a loan since employees were not retained.

Employee Retention Credit

In addition to providing SBA loans, the Act also creates an employee retention credit equal to 50% of up to $10,000 in qualified wages (including properly allocable qualified health plan expenses) paid per employee during the COVID-19 crisis by eligible employers. Eligible employers are those employers whose: (1) operations were fully or partially suspended due to shut-down orders related to COVID-19, or (2) gross receipts declined by more than 50 percent when compared to the same quarter in the prior year.

  • Qualified wages paid by eligible employers with greater than 100 full-time employees are wages paid to employees when they are not providing services for the period that the employer qualifies as an eligible employer, as defined above.
  • Qualified wages paid by eligible employers with 100 or fewer full-time employees are the wages paid to all employees, whether the employee is providing services or not, for the period that the employer qualifies as an eligible employer, as defined above.
  • Tax credits are not available for companies who obtain SBA loans under the Act.

Mid-Sized Business (500-10,000 Employees)

For business that have a wide scale impact on the economy, the Act also offers financial relief through loans with favorable interest rates for “eligible business” with 500-10,000 employees. The Act specifies certain industries such as the airline industry as well as certain financial institution as “eligible business,” it is unclear what other business may qualify for financial assistance. Applications will be available within ten (10) days of the Act. For employers, relevant conditions of the loans include:

  • Either retaining at least 90% of its workforce at full compensation and benefits until September 30, 2020, or intends to restore 90% percent of its workforce as it existed as of February 1, 2020 by May 31, 2020;
  • Barring employers from abrogating any existing any collective bargaining agreements during the term of the loan and 2 years after completing repayment; and
  • Remaining neutral in any union organizing effort for the term of the loan.

Employer Neutrality

The Act does not provide specifics on what constitutes “neutrality” or addresses other similar or overlapping topics such as card check, waiver of elections, and forms of assistance to unions such as providing names and contact information of employees. It is likely that deference will be afforded to the NLRB’s interpretations where “neutral” employer applies to waiver of employer free speech – not to procedural matters such card check, secret ballot elections, or other forms of union assistance. Notably, prior to the COVID-19 outbreak, the General Counsel of the NLRB challenged the parameters of neutrality agreements to prohibit forms of union assistance. For now, “neutrality,” at minimum, bars employers from campaigning against a union or favoring one union over another during an organizing campaign.

Delay of Payment of Employer Payroll Taxes

The Act also permits employers (and self-employed individuals) to defer payment of the employer’s share of the Federal Social Security tax (6.2%) on employee’s wages paid, as of the date of enactment through December 31, 2020. This provision requires that the deferred tax be paid over the following two years, with half of the amount required to be paid by December 31, 2021, and the other half by December 31, 2022.

Health Care Relief

The Act also increases funding for the Public Health and Social Services Emergency Fund, by attributing:

  • $75 billion in grants and other mechanisms to reimburse eligible health care providers for health care-related expenses or lost revenues not otherwise reimbursed that are directly attributable to COVID-19. Eligible providers are defined as public entities, Medicare- or Medicaid-enrolled suppliers and providers, and other for-profit and non-profit entities as specified by the Health and Human Services (HHS) Secretary.
  • $12.7 billion to fund activities such as developing vaccines, and purchasing vaccines, diagnostics and medical surge capacity. The Act would fund workforce modernization, telehealth access and other preparedness and response activities. At least $500 million of these funds must be made available to entities that are part of the Hospital Preparedness Program, with $200 million of these funds being made available within 30 days of enactment. In addition, at least $1.7 billion of these funds must be used to purchase products for the Strategic National Stockpile.

Other notable provisions of the Act applying to the healthcare industry include:

  • Reauthorizing Health Resources and Service Administration grants related to telehealth, rural health, food assistance and increased access to health services.
  • Providing “Good Samaritan” liability protections for volunteer health care professionals.
  • Establishing a Ready Reserve Corps to help ensure the supply of doctors and nurses trained to respond to public health emergencies.
  • Requires health insurance plans to provide coverage of a COVID-19 vaccine, when developed, at no cost to the patient.

The CARES Act also includes a number of Medicare and Medicaid provisions intended to increase support to hospitals and health care workers, as well as increase health care access for beneficiaries during the public health emergency. The Act:

  • Increases payments to hospitals by temporarily lifting the 2% Medicare sequester.
  • Increases Medicare payments for treating COVID-19 patients by 20%.
  • Expands the number of Medicare providers who can provide telehealth services and waives numerous face-to-face requirements between providers and patients.
  • Requires that Part D plans provide a 90-day supply of prescription medication when requested.

The Act reauthorizes and provides funding for a number of public health programs through November 30, 2020, including funding for:

  • Community Health Centers.
  • The National Health Services Corps.
  • The Temporary Assistance for Needy Families Program.
  • Programs that award grants to fund HIV/STD prevention, teen pregnancy prevention, and youth development.

The Act also extends Medicaid programs that help patients transition from nursing home settings to home settings. The Act also delays cuts to Medicaid Disproportionate Share Hospital (DSH) payments through November 30, 2020.

Finally, the Act makes significant changes to the regulation of over-the-counter (OTC) drugs, notably allowing the Federal Drug Administration to approve changes to OTC drugs administratively rather than through full notice and comment rulemaking, by creating an 18-month exclusivity period as an incentive for companies to bring innovative OTC products to market.

Amendments To The FFCRA

The Act also contains several technical amendments to the Families First Coronavirus Response Act (“FFCRA”):

  • Limitations on Employer Paid Sick Leave Obligations: An employer’s requirement to provide paid leave with respect to any individual employee expires upon the earlier of: (i) the time when the employer has paid for sick leave for an equivalent of 80 hours of work; or (ii) upon that employee’s return to work after taking paid leave. (e. Emergency Paid Sick Leave must be used all at once, not intermittently).
  • Paid Leave for Rehired Employees: Recently re-hired employees who were laid off not earlier than March 1, 2020 are now eligible for leave under the Emergency Family and Medical Leave Expansion Act (“EFMLEA”).

Secretary of Labor Exclusion for Small Businesses: The Secretary of Labor may exempt employers of fewer than 50 employees from providing emergency paid sick leave to employees caring for an individual who is quarantined or self-quarantined or a child whose school or daycare closed or other caregiver has become unavailable due to coronavirus, but does not extend this waiver authority to other uses of emergency paid sick leave.

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

On March 18, 2020, the Families First Coronavirus Response Act (“FFCRA”) was signed into law, requiring certain employers to provide paid sick leave and paid family leave for eligible employees affected by the Coronavirus of COVID-19. See Client Alert – Responding to the Coronavirus – Paid Sick Leave. The Act provides that the Secretary of Labor will issue guidance to assist employers in implementing the provision of the Act.

On March 24, 2020, the U.S. Department of Labor’s (“DOL”) Wage and Hour Division (“WHD”) published guidance for employees and employers to take advantage of the protections and relief provided by the FFRCA. The Department of Labor’s WHD administers and enforces the new law’s paid leave requirements. The guidance is provided in a Fact Sheet for Employees, a Fact Sheet for Employers, and Question and Answer document, addressing critical questions concerning the leave provisions in the Act.

On March 25, 2020, the WHD published further guidance in the form of additional Fact Sheets and Questions and Answer documents, as well as workplace posters for employers to provide to employees. Additional information will likely be forthcoming from the WHD in the next few days. The law is to take effect on April 1, 2020, rather than April 2nd, and will apply through December 31, 2020.

As used herein, “paid sick leave” means paid leave under the Emergency Paid Sick Leave Act, and “expanded family and medical leave” means paid leave under the Emergency Family and Medical Leave Expansion Act.

 

FACT SHEET FOR EMPLOYEES AND EMPLOYERS

The Fact Sheet for Employees and the Fact Sheet for Employers cover the same general information. Among other things, they provide an overview of the leave requirements under the FFCRA. Covered employers are required to provide their employees with paid sick leave and expanded family and medical leave for certain qualified reasons related to COVID-19, including the following:

  • Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay, where the employee is unable to work because the employee is quarantined (pursuant to an order of the federal, state, local government or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
  • Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to an order of the federal, state, local government or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable due to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
  • Up to 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay if an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19 (for employees who have been employed for at least 30 days prior to the leave).

However, employers of health care providers or emergency responders may elect to exclude such employees from this leave.

The Fact Sheets also provide the following guidance on application of the leave requirements.

Covered Employers

The FFCRA applies to certain public and private employers with fewer than 500 employees.

Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or unavailability of childcare if it would jeopardize the viability of the business as a going concern. Employers with fewer than 50 employees may also seek an exemption from other provisions of the Act, and the DOL is expected to issue guidelines with that regard to those employers in April 2020.

Covered Employees

All employees of covered employers are eligible for two (2) weeks of paid sick time for specified reasons related to COVID-19.

Employees employed for at least 30 days are eligible for up to an additional 10 weeks of paid family leave to care for a child under certain circumstances related to COVID-19.

Special rules apply for health care providers and emergency responders.

Employees should provide notice of leave as is practicable. After the first workday of paid sick time, an employer may require employees to follow reasonable notice procedures to continue receiving paid sick time.

Qualifying Reasons for Leave

The Fact Sheets provide that an employee qualifies for sick leave if the employee is unable to work (or telework) due to a need for leave because the employee:

  1. is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. has been advised by a health care provider to self-quarantine related to COVID-19;
  3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. is caring for an individual subject to an order described in (1) or self-quarantine in (2);
  5. is caring for a child whose school or place of care is closed because of COVID-19;
  6. 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.

The employee also qualifies for expanded family and medical leave if the employee is caring for a child whose school or place of care is closed because of COVID-19.

Duration of Leave

For reasons (1)-(4) and (6), full time employees are eligible for up to 80 hours of leave, and part-time employee are eligible for the number of hours of leave that the employee works on average over a two-week period.

For reason (5), full-time employees are eligible for up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave) at 40 hours a week, and part-time employees are eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Calculation of Pay

For reasons (1)-(3), employees taking leave shall be paid at the higher of either their regular rate or the applicable minimum wage, up to $511 per day and $5,110 in the aggregate (over a 2-week period).

For reasons (4) or (6), employees taking leave shall be paid at the higher of either 2/3 their regular rate or 2/3 the applicable minimum wage, up to $200 per day and $2,000 in the aggregate (over a 2-week period).

For reason (5), employees taking leave shall be paid at the higher of either 2/3 their regular rate or 2/3 the applicable minimum wage, 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 expanded family and medical leave). Employees may choose to substitute the first two weeks with any accrued vacation leave personal leave, or medical or sick leave under their employer’s policy.

Leave under this Act does not carry over to the following year, and employees are not entitled to reimbursement for unused leave upon termination of employment.

Tax Credits

Covered employers qualify for dollar-for-dollar reimbursement through tax credits for qualifying wages paid under the FFCRA, up to the appropriate per diem and aggregate payment caps.

Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage. See Client Alert – Treasury, IRS and Labor Announce Plan to Implement Coronavirus-Related Paid Leave for Workers and Tax Credits for Small and Midsize Businesses.

Employer Notices

Covered employers must post a notice of FFCRA requirements in a conspicuous place on its premises. The DOL has now provided two model notices on Employee Rights, one for non-federal employees and a second for federal employees.

Prohibitions

Employers may not discharge, discipline, or otherwise discriminate against any employee for taking leave under the FFCRA or for filing a complaint or instituting a proceeding under FFCRA.

Penalties and Enforcement

Employers who violate the first two weeks of expanded leave provisions or prohibitions of the FFCRA will be subject to penalties and enforcement as described in the Fair Labor Standards Act (“FLSA”), 29 U.S.C. 216, 217.

Employers who violate provisions providing for an additional 10 weeks of expanded family and medical leave to care for a child whose school or place of care is closed are subject to the enforcement provisions of the Family and Medical Leave Act (“FMLA”).

The DOL will observe a temporary 30-day period of non-enforcement after the Act takes effect, or until April 17, 2020, so long as the employer acts reasonably and in good faith to comply with the Act. “Good faith” exists when:

  • violations are remedies and the employee is made whole as soon as practicable by the employer,
  • the violations are not willful, and
  • the employer provides a written commitment to the DOL to comply in the future

 

 

QUESTION AND ANSWER SHEETS

The DOL also provided a Question and Answer sheet, providing guidance on the following topics. The DOL will also be issuing regulations to implement the provisions in the Act.

  1. Effective Date of the FFCRA
    The paid leave provisions under the FFCRA are effective April 1, 2020, and apply to leave taken between April 1, 2020 and December 31, 2020.
  2. Calculation of Size of Employer
    In making the determination as to whether a business is under the 500-employee threshold, employers should include employees on leave, temporary employees who are jointly employed employees (regardless of whether they are maintained only on one of the employer’s payroll), and day laborers supplied by a temporary agency (if there is a continuing employment relationship).Workers, who are independent contractors under the FLSA, rather than employees, are not considered employees for purposes of the 500-employee threshold.Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold. However, where a corporation has an ownership interest in another corporation, the two corporations are separate employers, unless they are joint employers of certain employees under the FLSA. If two entities are joint employers, all of their common employees must be counted in determining coverage under the FFCRA.In general, two or more entities are separate employers unless they meet the integrated employer test under the FMLA. If two entities are an integrated employer under the FMLA, then employees of all entities making up the integral employer will be counted in determining coverage under the FFCRA.
  3. Private Sector Employers
    Private sector employers are only required to comply with the Acts if they have fewer than 500 employees.
  4. Small Businesses Exemption
    Employers with fewer than 50 employees can apply for an exemption under the Act if providing child-care-related paid sick leave and expanded family and medical leave would jeopardize the viability of their business as a going concern.To take advantage of the exemption, employers should document why their business meets the criteria, which will be addressed by the DOL in more detail in forthcoming regulations. However, employers should not send any materials to the DOL when seeking the small business exemption.
  5. Calculation of Hours Worked by Part-Time Employees
    Part-time employees are entitled to leave for the average number of hours worked in a two-week period. This calculation is based on the number of hours the employee is normally scheduled to work.If the normal hours are unknown or varies, a six-month average may be used. The part-time employee may take paid sick leave for this number of hours per day for the two-week period, and then expanded family and medical leave for the same number of hours per day up to ten weeks after that.If the employee has not been employed for at least six months, the number of hours that the employee agreed to work upon hiring may be used. If no such agreement, the appropriate number of hours may be calculated based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.
  6. Overtime Hours, Overtime Pay
    When calculating pay due to employees for expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act, if the employee would have normally been scheduled to work more than 40 hours in a week, overtime hours must be included, subject to the daily and aggregate cap. However, premium pay is not required for hours worked over 40 per week.When calculating pay due to employees for paid sick leave under the Emergency Paid Sick Leave Act, the Act only requires payment for up to 80 hours over a two-week period. So if an employee is scheduled to work 50 hours per week, that employee may take 50 hours of paid sick leave in the first week, and 30 hours of paid sick leave in the second week, for a total of 80 hours in two weeks, subject to the daily and aggregate cap. Again, premium pay is not required for hours worked over 40 per week.
  7. Calculation of Rate of Pay
    The rate of pay for an employee taking paid sick leave or expanded family and medical leave under the FFCR depends on the employee’s normal schedule the reason for taking leave.Employees who are taking paid sick leave because they are unable to work because they (1) are subject to a federal, state or local order of quarantine or isolation related to COVID-19; (2) have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) are experiencing symptoms of COVID-19 and are seeking medical diagnosis, will receive:

    • the greater of their regular hourly rate of pay, or the applicable minimum wage (federal, state or local)
    • up to a maximum of $511 per day, or $5,110 total over the entire paid sick leave period.

Employees who are taking paid sick leave because they are unable to work because they are (1) caring for an individual who is subject to a federal, state or local order of quarantine or isolation related to COVID-19 or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for a child whose school or place of care is closed due to COVID-19; or (3) experiencing any other substantially-similar conditions that may arise, as specified by the Secretary of Health and Human Services, will receive:

    • the greater of 2/3 of their regular hourly rate of pay, or 2/3 of the applicable minimum wage (federal, state or local)
    • up to a maximum of $200 per day, or $2,000 total over the entire paid sick leave period.

Employees taking expanded family and medical leave:

    • for the first 10 days, they may take paid sick leave, or substitute any accrued vacation leave, personal leave or medical or sick leave under their employer’s policy
    • for the following 10 weeks, they will be paid for leave at the greater of 2/3 of their regular hourly rate of pay, or 2/3 of the applicable minimum wage (federal, state or local)
    • up to a maximum of $200 per day, or $12,000 for the twelve weeks that include both paid sick leave and expanded family and medical leave when the employee is on leave to care for a child whose school or place of care is closed due to COVID-19.
  1. Regular Rate of Pay
    For purposes of FFCRA, the regular rate of pay used to calculate paid leave is the average of the employee’s regular rate (as determined by section 7(e) of the FLSA) over a period of up to six months prior to the date on which leave is taken.If the employee has not worked for the employer for six months, the regular rate is the average of the regular rate of pay for each week worked for the employer.If paid with omissions, tips or piece rates, they should be incorporated into the calculation of regular rate.The regular rate can also be computed for each employee by adding all compensation that is part of the regular rate over the applicable period above and dividing it by the sum of all hours actually worked in the same period.
  2. No Stacking of Paid Sick Leaves
    Employees may not use 80 hours of paid sick leave for one qualifying reason, and then another amount for another qualifying reason under the Emergency Paid Sick Leave Act. Employees may only take up to two weeks of paid sick leave, capped at 80 hours total for full-time employees, or the number of hours worked over a two-week period for part-time employees, for any combination of qualifying reasons.
  3. Stacking of Paid Sick Leave and Expanded Family and Medical Leave
    Employees may take both paid sick leave and expanded family and medical leave to care for a child whose school or place of care is closed for COVID-19 reasons, for a total of twelve (12) weeks of paid leave.The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave, which covers the first ten workdays of expanded family and medical leave (which is otherwise unpaid unless accrued vacation, personal, medical or sick leave under the employer’s policy is used).Thereafter, the employee can receive another ten weeks of leave under the expanded family and medial leave at a rate of 2/3 the regular rate of pay for the hours the employee would have been scheduled to work in those ten weeks. However, the additional ten weeks of leave can only be used care for a child whose school or place of care is closed for COVID-19 reasons.
  4. Paid Sick Leave Taken Prior to the FFCRA
    If an employee was provided paid sick leave for a qualifying reason prior to the effective date of FFCRA, the employee is entitled to the full amount of paid sick leave under the Emergency Paid Sick Leave Act beginning on April 1, 2020.
  5. All Leave Under the FMLA Leave Is Not Paid
    Only family leave under the Emergency Family and Medical Leave Expansion Act is paid, after the first 10 days of leave.
  6. Is Paid Leave Under the FFCRA Retroactive
    No, the paid sick leave and expanded family and medical leave requirements under the FFCRA are not retroactive.
  7. Calculation of 30-Day Eligibility Period for Employees
    Employees are considered to have been employed by their employer for at least 30 calendar days if the employer had the employee on its payroll for the 30 calendar days immediately prior to the day leave would begin.For an employee who has been working as a temporary employee, and is subsequently hired on a full-time basis, the days previously worked as a temporary employee may be counted towards the 30-day eligibility period.
  8. Employer’s Obligation to Employees Under a Government-Imposed Quarantine
    WHD encourages employers to be accommodating and flexible with workers impacted by government-imposed quarantines. Employers may offer alternative work arrangements, such as teleworking, and additional paid time off to such employees.
  9. Employers Can Require Employees to Perform Work Outside the Job Description
    The FLSA does not limit the types of work employees over the age of 18 may be required to perform, even if outside the employee’s job description. Thus, workers may be assigned to work outside of their job description during a pandemic or public health emergency. Employers should however consult their collective bargaining agreements with unions.
  10. Employers Can Send Employees Home or Require Them to Take Sick Leave
    Employees can exclude employees from the workplace, but cannot do so on a discriminatory basis (i.e., age, disability, race, sex, etc.) However, an employer may exclude from the workplace an employee with a disability if the employer:
    • obtains objective evidence that the employee poses a direct threat (i.e., significant risk of substantial harm); and
    • determines that there is no available reasonable accommodation to eliminate the direct threat.

During a pandemic, employers may require a doctor’s note, a medical examination, or a timer period during which the employee has been symptom free before it allows the employee to return to work, if the employer has reasonable belief, based on objective evidence, that the employee’s present medical condition would:

    • impair his ability to perform essential job functions with or without reasonable accommodation, or
    • pose a direct threat (i.e., significant risk of substantial harm that cannot be reduced or eliminated by reasonable accommodation) to safety in the workplace
  1. Telework
    Employers may require employees to telework as an infection-control strategy. Telework may also be a reasonable accommodation.However, employers may not single out employees to either telework or report to the workplace on a basis that is discriminatory.Employers do not need to pay non-exempt employees their same hourly rate if they work from home, unless required to do so by union or employment contract, or if teleworking is provided as a reasonable accommodation. However, employees must be paid the minimum wage and they must be paid for all hours worked, including overtime hours at 1.5 times the hourly rate.Employers who are required to keep records of work-related injuries and illnesses will continue to be responsible for keeping records for injuries and illnesses occurring in a home office.In the event an employer bars employees from working from the workplace and requires them to work from home, for those who are unable to work from home, the employer is not required to pay them. The FLSA only requires employees to be paid for time actually worked. Salaried exempt employees only must receive their full salary in any week in which they perform any work.When not all employees can work from home, WHD encourages employers to consider additional options to promote social distancing, such as staggered work shifts.
  2. Additional FLSA Questions
    Business with a shortage of workers and that are looking for “volunteers to help out should be aware of FLSA requirements. In general, covered, nonexempt workers for private, for-profit employers must be paid at least the minimum wage and cannot volunteer their services. Employers should check with DOL for rules governing volunteering in the public and private, non-profit sector.Individuals who volunteer their services to a public agency in an emergency capacity are not considered employees due compensation under the FLSA if they:
    • perform such services for civic, charitable or humanitarian reasons without expectation of compensation (although expenses, benefits and nominal fees may be paid);
    • offer their services freely and without coercion; and
    • are not otherwise employed by the same pubic agency to perform the same services for which they are volunteering.Similarly, individuals who volunteer their services to private not-for-profit organizations in an emergency capacity for civic, charitable or humanitarian reasons without expectation of compensation are not considered employees due compensation under the FLSA. However, employees of such organizations may not volunteer to perform on an uncompensated basis the same services they are employed to perform.

Final Paycheck. Employers must provide workers who have been laid off with their final paycheck by the regular payday for the pay period worked.

Partial Work. If an employee worked a partial week but then the employer’s business closed, under the FLSA that employee only needs to be paid for hours actually worked – not hours the employee would otherwise have worked.

Forced Vacations. The FLSA does not require employers to provide vacation time. Where an employer offers a bona fide benefits plan or vacation time to employees, there is no prohibition on an employer requiring that such accrued leave or vacation time be taken on a specific day.

Exempt Employees. Generally exempt employees must receive their full salary in any week in which they perform any work.

  1. FMLA Leave

Employees who are out of work due to a serious health condition, or to care for a family member with a serious health condition, may be entitled to unpaid leave under the FMLA if they:

    • have worked for their employer for at least 12 months;
    • have at least 1,250 hours of service over the previous 12 months; and
    • work at a location where at least 50 employees are employed within 75 miles

Eligible employees are entitled to up to 12 weeks of unpaid, job-protected leave in a 12-month period.

  1. Employee’s Refusal to Work at the Workplace
    Leave taken by an employee for the purpose of avoiding exposure to the Coronavirus would not be protected under the FMLA. Employers should consider flexible leave policies for their employees in these circumstances.
  2. Can Employers Change Paid Sick Leave Policy
    Employers may change their sick leave policy if a number of employees are out and they cannot afford to pay, provided it does so in a manner that does not discriminate, and in compliance with any collective bargaining agreement. Otherwise, while employees may have a contractual right to any accrued sick leave, they do not have a right to future leave.
  3. Laying Off of Employees
    If an employer temporarily closes its place of business because of COVID-19 related reasons, it may choose to lay off some but not all employees, so long as it does not do so on a discriminatory basis.Employers should consider whether notice requirements under the Worker Adjustment and Retraining Notification (WARN) Act would be triggered.
  4. Posting of Notices of FFCRA Requirements

Each covered employer must post a notice of the FFCRA requirements in a conspicuous place on its premises. If the employer has a main office and several other worksites, the notice only needs to be posted in the main location. An employer with employees who are teleworking may satisfy the notice requirement by emailing or direct mailing the notice to current employees, or posting it on the employee information internal or external website.

Notice only need be provided to current employees, including new hires. It does not have to be shared with laid-off workers or prospective employees.

The notice does not need to be posted in multiple languages, although the DOL is working to translate it into other languages.

All employers with fewer than 500 employees must post the notice.

 

IMPACT ON NEW YORK


Qualify Reason for Leave

The FFCRA is broader in terms of qualifying reasons for taking leave, as it includes not only employees who are ordered quarantined or isolated by a governmental entity, but also on advice by a health care provider.

The New York emergency paid family and sick leave law only applies to those subject to a mandatory or precautionary order of quarantine or isolation issued by the state of New York, the department of health, local board of health, or any government entity authorized to issue such order due to COVID-19. Thus, more employees with qualify for leave under the FFCRA.

Covered Employers

The FFCRA excludes from coverage employers with greater than 500 employees. Employers with fewer than 50 employees can also seek an exemption if the requirements would jeopardize the viability of their business as a going concern.

The New York law applies to all employers regardless of size. It only impacts the amount of leave that is required to be provided. Employers with 100 or more employees are required to provide at least 14 days of paid sick leave, while employers with 11 to 99 employees and employers with 10 or fewer employees (with net income more than $1 million in the previous tax year) must provide at least 5 days of paid sick leave. Employers with 10 or fewer employees (with net income less than $1 million in the previous tax year) are only required to provide unpaid sick leave, along with paid family leave and disability benefits.

Covered Employees        

The FFCRA excludes from coverage for expanded family and medical leave employees who have not been employed by the employer for30 days prior to the need to take leave. The New York law applies immediately, regardless of length of employment.

Under the FFCRA, employers may exclude from coverage health care providers or emergency responders.

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

In our previous alert on Responding to the Coronavirus – Paid Sick Leave, we advised that on March 18, 2020, President Donald Trump signed into law the Families First Coronavirus Response Act (“FFCRA”), requiring employers to provide paid sick leave and paid family leave for eligible employees affected by the Coronavirus of COVID-19. These provisions were to take effect 15 days after the date of enactment, or April 2, 2020. The Act also allows for employers to a payroll tax credit for required paid sick leave and family leave, in order to enable employers to keep workers on their payrolls.

On March 20, 2020, the U.S. Treasury Department, Internal Revenue Services (“IRS”) and the U.S. Department of Labor announced a plan to implement the Act so that eligible employers can begin to immediately take advantage of two new refundable payroll tax credits to reimburse them, dollar-for-dollar, for the cost of providing Coronavirus-related leave to their employees. Eligible employers are businesses and tax-exempt organizations with fewer than 500 employees that are required to provide emergency paid sick leave and family leave under the Act. Eligible employers will be able to claim these credits based on qualifying leave provided between the effective date and December 31, 2020. Equivalent credits are also available to self-employed individuals based on similar circumstances.

Complete Reimbursement for Employers

Paid Sick Leave Credit

The Act provides that employees who are unable to work due to COVID-19 because of an order to quarantine or isolate, self-quarantine, or to seek medical diagnosis, may receive up to 80 hours of paid sick leave at 100% of the employee’s pay, up to $511 per day and $5,110 in the aggregate, for a total of ten (10) days.

Employees who are unable to work because of COVID-19 to care for another individual who is quarantined or isolated, or to care for a child whose school or child care facility as closed, or who is experiencing similar conditions as specified by the U.S. Department of Health and Human Services, may receive up to 80 hours of paid sick leave at 2/3 of the employee’s pay, up to $200 per day and $2,000 in the aggregate, for a total of ten (10) days.

Employers are allowed a tax credit for each calendar quarter in an amount equal to 100 percent of the qualified sick leave wages paid. Employers are also entitled to an additional tax credit based on costs to maintain health insurance coverage for the eligible employee during the leave period.

Paid Family Leave Credit

In addition to the sick leave, employees who are unable to work to care for a child whose school has been closed or child care provider is unavailable due to COVID-19 may receive up to an additional ten weeks of expanded paid family leave at 2/3 the employee’s pay, up to $200 per day or $10,000 in the aggregate. Up to ten (10) weeks of qualifying leave can be counted towards the paid family leave credit.

Employers are allowed a tax credit for each calendar quarter in an amount equal to 100 percent of the qualified family leave wages paid. Employers are entitled to an additional tax credit based on costs to maintain health insurance coverage for the eligible employee during the leave period.

Prompt Funding For the Cost of Providing Leave

Typically, employers are required to withhold from their employees’ paychecks federal income taxes and the employees’ share of Social Security and Medicare Taxes. The employers are then required to deposit the payroll taxes with the IRS and file quarterly payroll tax returns.

Under guidance that will be released next week, eligible employers who pay qualified sick leave or family leave under the Act may retain an amount of the payroll taxes equal to the amount of qualifying sick leave and family leave paid, rather than deposit them with the IRS. The payroll taxes that may be retained include:

  • federal income taxes
  • employee’s share of Social Security and Medicare taxes
  • employer’s share of Social Security and Medicare taxes

Moreover, if there are insufficient payroll taxes to cover the cost of qualified sick leave and family leave paid, employers may file a request for an accelerated payment from the IRS. The IRS expects to process such requests in two weeks or less. The details of this expedited process will be available later in the week.

The IRS provides examples of funding scenarios including the following:

Example 1: If an eligible employer pays $5,000 in sick leave and is otherwise required to deposit $8,000 in payroll taxes, the employer could use up to $5,000 of the $8,000 payroll taxes to make qualified leave payments. The employer would be required to deposit the remaining $3,000 on its next regular deposit date.

Example 2: If an eligible employer pays $10,000 in sick leave and is otherwise required to deposit $8,000 in payroll taxes, the employer could use the entire $8,000 of payroll taxes in order to make qualifying leave payments, and file a request for an accelerated credit for the remaining $2,000.

Small Business Protection

The Act provides protection to certain small businesses with fewer than 50 employees. The Secretary of Labor may exclude such employers from the paid leave requirements, if the requirements would jeopardize the viability of the business as a going concern. The Department of Labor will provide emergency guidance and rulemaking to clearly articulate this standard.

Non-Enforcement Period for Good Faith Compliance

Finally, the Department of Labor announced that it will be issuing a temporary non-enforcement policy to allow time for employers to come into compliance with the Act. Under the policy, the Department of Labor will not bring an enforcement action against any employer for violations of the Act during the 30-day period, so long as the employer acted reasonably and in good faith to comply, but will instead focus on compliance assistance.

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Putney, Twombly, Hall & Hirson LLP

On March 19, 2020, Governor Andrew Cuomo signed Executive Order 202.7 mandating that all non-essential businesses reduce their in-person workforce by 75% by March 21, 2020 at 8:00 p.m. Due to the rapid rise of COVID-19 cases in New York, on March 20, 2020, Governor Cuomo announced an adjustment to that mandate to 100% of non-essential businesses. The mandate, which is called “Pause,” requires that all non-essential workers stay home, except in certain critical sectors needed to ensure the health and welfare of New Yorkers. The Pause mandate is to go into effect Sunday evening.

While the list of sectors that that are exempt from the Pause mandate will be provided later in the day, the Governor stated that New York will follow the federal guidelines. The federal critical infrastructure sectors identified by the Cybersecurity and Infrastructure Security Agency (“CISA”) during COVID-19 are limited to the following sectors:

  1. Chemical
  2. Commercial Facilities
  3. Communications
  4. Critical Manufacturing
  5. Dams
  6. Defense Industrial Base
  7. Emergency Services
  8. Energy
  9. Financial Services
  10. Food and Agriculture
  11. Government Facilities
  12. Healthcare and Public Health
  13. Information Technology
  14. Nuclear Reactors, Materials, and Waste
  15. Transportation Systems
  16. Water and Wastewater Systems

Accordingly, it would appear that only businesses directly involved in providing services within the sixteen critical sectors, or necessary to continue the supply chain to these sectors, would be excluded from the Pause Order. These would include among other things, hospitals, public transportation, gas stations, pharmacies, grocery stores, food banks, and restaurants that offer take-out and delivery service.

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Putney, Twombly, Hall & Hirson LLP

In further response to the Coronavirus or COVID-19, on March 18, 2020, Governor Andrew Cuomo signed Executive Order 202.6, mandating that all non-essential businesses reduce their in-person workforce by 50% by March 20, 2020 at 8:00 p.m.

On March 19, 2020, Governor Cuomo announced an adjustment to that mandate, increasing the reduction to 75% in order to keep more workers home. The Executive Order provides the following:

  • Effective March 20, 2020 at 8:00 p.m., all businesses and not-for-profit entities in New York must utilize, to the maximum extent possible, telecommuting or work from home procedures;
  • By no later than March 20, 2020 at 8:00 p.m., employers must reduce their in-person workforce at any location by 50% (expected to be 75%), with the exception of essential businesses.
  • Essential businesses, which are not subject to the restrictions, include:
    • Essential health care operations (i.e., research and laboratory services)
    • Essential infrastructure (i.e., utilities, telecommunication, airports and transportation infrastructure)
    • Essential manufacturing (i.e., food processing, pharmaceuticals)
    • Essential retail (i.e., grocery stores, pharmacies)
    • Essential services (i.e., trash collection, mail, shipping services)
    • News media
    • Banks and related financial institutions
    • Providers of basic necessities to economically disadvantaged populations
    • Construction
    • Vendors of essential services necessary to maintain safety, sanitation and essential operations of residences and essential business
    • Vendors of essential services that provide essential services or products, including logistics and technology support, child care and services needed to ensure the continuing operation of government agencies and provide for the health, safety and welfare of the public
  • Other businesses deemed essential after requesting an opinion from the Empire State Development Corporation.

The Empire State Development Corporation will make such determinations by March 19, 2020 at 5:00 p.m.

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Putney, Twombly, Hall & Hirson LLP

On March 13, 2020, President Donald Trump declared the Coronavirus Disease 2019 (“COVID-19” or “Coronavirus”) pandemic a national emergency in order to allocate up to $50 billion to respond to the outbreak. On March 18, 2020, the Administration also agreed to a relief package that would allocate tens of billions of dollars to sick leave, unemployment insurance, food stamps and other measures to address the crisis.  The new federal measures are known collectively as the “Families First Coronavirus Response Act” (“FFCRA”).  The FFCRA is effective fifteen days (15) from enactment, or April 2, 2020..

In addition, on March 15, 2020, Mayor Bill de Blasio announced the closure of New York City’s public school system, and Governor Andrew Cuomo announced similar closures for all New York public schools.  On March 18, 2020, New York passed its own emergency paid sick leave law, which is effective immediately.

I. New York State Response: Paid Family Leave and Temporary Disability Insurance Benefits

While the federal law still excludes many workers from coverage, Governor Cuomo signed a new emergency paid sick leave package that guarantees at least two weeks of paid sick leave and job protection during a quarantine order for all public employees and employees of businesses employing 100 or more people.  Employers of 11 to 99 employees, or employers of 10 or fewer employees with net income of more than $1 million, must provide at least five (5) days paid sick leave and job security during a mandatory quarantine order, along with access to paid family leave and disability benefits during the isolation period.  Businesses with 10 or fewer employees and a net income of less than $1 million must provide job protection and access to paid family leave and disability benefits to affected workers.  The Act provides for the following:

A. Emergency Paid Sick Leave Due to COVID-19

  • Applies to those subject to a mandatory or precautionary order of quarantine or isolation issued by the state of New York, the department of health, local board of health, or any government entity authorized to issue such order due to COVID-19.
  • Does not apply to those who returned from travel to level two or three countries for non-work-related travel.
  • Employers with 10 or fewer employees (with net income less than $1 million in the previous tax year):
    • must provide employees with unpaid sick leave for the duration of any mandatory or precautionary order of quarantine or isolation.
    • thereafter, employees are eligible for paid family leave benefits and disability benefits under the Act.
  • Employers with 10 or fewer employees (with net income more than $1 million in the previous tax year):
    • must provide employees with at least five (5) days of paid sick leave during a mandatory or precautionary order of quarantine or isolation,
    • must provide employees with unpaid sick leave for the duration of the mandatory or precautionary order of quarantine or isolation.
    • after the five days of paid sick leave, employees are eligible for paid family leave benefits and disability benefits under the Act.
  • Employers with 11 to 99 employees:
    • must provide employees subject to a mandatory or precautionary order of quarantine or isolation with at least five (5) days of paid sick leave.
    • must provide employees with unpaid sick leave for the duration of the mandatory or precautionary order of quarantine or isolation.
    • after the five days of paid sick leave, employees are eligible for any paid family leave benefits and disability benefits under the Act.
  • Employers with 100 or more employees:
    • Must provide employees subject to a mandatory or precautionary order of quarantine or isolation with at least fourteen (14) days of paid sick leave.
  • Public employers:
    • Must provide employees and officers subject to mandatory or precautionary order of quarantine or isolation with at least (14) days of paid sick leave.
  • Employees must be compensated at their regular rate of pay for hours they would have regularly worked.
  • Nothing in the Act should infringe upon an employee’s rights under any law, rule or collectively bargained agreement, or benefits accrued through a collectively bargained agreement.
  • Employees must be returned to the same position following leave.
  • Retaliation for taking leave is prohibited.

 

B. Disability and Family Leave Benefits Due to COVID-19

  • “Disability” under the Act means inability to work as a result of a mandatory or precautionary order of quarantine or isolation.
  • Does not apply to employees who are asymptomatic or not yet diagnosed with any medical condition and is physically able to work while under mandatory or precautionary order of quarantine or isolation.
  • Disability benefits are available on the first day of disability.
  • “Family leave” under the Act means leave taken for the following:
    • the employee is subject to a mandatory or precautionary order of quarantine or isolation; or
    • to provide care for a minor dependent child who is subject to a mandatory or precautionary order of quarantine or isolation.
  • Benefits may be payable concurrently to an eligible employee upon the first day of mandatory or precautionary order of quarantine or isolation.
    • However, an employee may not collect benefits that would exceed $840.70 in paid family leave benefits and $2,043.92 in disability benefits per week.

The law also provides that if the federal government provides sick leave and/or employee benefits by law or regulation related to COVID-19, then the sick leave, family leave and disability benefits in this Act will not be available.  However, if the provisions in this Act would provide greater benefits, then employees shall be able to claim the difference of the additional sick leave and/or employee benefits available under the Act.

The Act is to take effect immediately.

II. Federal Response: Families First Coronavirus Response Act:

In order to stop the spread of the Coronavirus, the FFCRA provides for free testing for everyone who needs a test, including the uninsured.  In addition, the FFCRA provides for additional measures to put families first, including paid emergency leave, with ten (10) days of paid sick leave, and up to three months of paid family and medical leave, as well as enhanced unemployment insurance.  It also provides for enhanced food programs for children and seniors, and increased funds for Medicaid.  The leave provisions are contained in the “Emergency Paid Leave Act of 2020” and the “Paid Sick Days for Public Health Emergencies and Personal and Family Care Act.”

However, those benefits only apply to employees of businesses with fewer than 500 employees, or the government, who are infected by the virus, quarantined, have a sick family member or are affected by school closings.  For companies with fewer than 50 employees, the Labor Department will have the option of exempting their workers if it determines that providing paid leave “would jeopardize the viability of the business as a going concern.”  It also excludes “certain health care providers and emergency responders” from the benefits.

A. Emergency Family and Medical Leave Expansion Act

Currently there is no federal requirement for employers to provide paid sick leave. The Family and Medical Leave Act (“FMLA”) only provides for up to twelve (12) weeks of unpaid leave for certain medical situations for the employee or the employee’s immediate family member, or up to 26 weeks for a covered service member.

The new legislation amends the FMLA, by adding Section 102(a)(1)(F), known as the “Emergency Family and Medical Leave Expansion Act,” which provides for public health emergency leave, as follows:

Eligibility:

  • A public health emergency is an emergency with respect to COVID-19, declared by a federal, state or local authority.
  • Qualifying reason to take leave under this section for a public emergency is limited to employees unable to work (or telework), to care for a son or daughter under 18 years if the school has been closed or the child care provider is unavailable due to a public health emergency.
  • Excludes days that an individual receives pay from employer (regular wages, sick pay, or other paid time off).
  • Applies to employees who were working 30 days prior to being impacted by the Coronavirus.

Exclusions

  • Excludes employers with greater than 500 employees.
  • The Secretary of Labor may exclude employers with fewer than 50 employees, if the requirements would jeopardize the viability of the business as a going concern.
  • An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employees.
  • The Secretary of Labor may exclude certain health care providers and emergency responders as eligible employees.

Benefit

  • Provides that the first 10 days of leave under Section 102(a)(1)(F) may be unpaid;
    • However, an employee may elect to substitute accrued vacation leave, personal leave or medical or sick leave for unpaid leave under Section 102(a)(1)(F).
  • An employer must provide paid leave for each day after the first 10 days.
  • The compensation paid to employees must not be less than two-thirds of the employee’s regular rate (as determined by section 7(e) of the FLSA),
    • The number of hours is determined by the hours the employee is normally scheduled to work;
    • If on a flexible schedule, the average number of hours is determined by the average hours the employee was scheduled per day over a 6-month period
  • The benefit is capped at $200 per day, or $10,000 total.

Application

  • The employee must provide the employer with such notice of leave as is “practicable.”
  • The employer must be restored to his/her position upon return from leave
    • Exception for employers with fewer than 25 employees, if the employee takes leave under Section 102(a)(1)(F), and the position no longer exists due to economic conditions caused by the public health emergency, and reasonable efforts were made to restore the employee to an equivalent position.
  • Employers who are signatory to multi-employer collective bargaining agreements (“CBA”) may, consistent with their CBAs, make contributions to a multiemployer fund or plan based on the hours of paid sick time each employee is entitled to under the Act; employees may secure pay from such fund or plan.
  • The Act takes effect 15 days after the date of enactment.

B. Emergency Paid Sick Leave Act

The FFCRA also includes a section known as the “Emergency Paid Sick Leave Act,” which provides for the following:

Eligibility:

  • Applies to private employers who employ fewer than 500 employees.
  • Applies to public agencies or entities employing 1 or more employees, but certain employers with fewer than 50 employees can be exempt.
  • Paid sick time is provided to an employee who is unable to work (or telework) for the following qualifying reasons:
    1. the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
    2. the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
    3. the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
    4. the employee is caring for an individual who is subject to an order of quarantine or isolation or is has been advised to self-quarantine;
    5. the employee is caring for a son or daughter whose school has closed or child care provider is unavailable due to COVID-19 precautions; or
    6. the employee is experiencing any other substantially similar symptoms.
      • However, employers may exclude health care providers and emergency responders from this requirement.
  • Employees are eligible for paid sick leave immediately, regardless of length of employment.
  • Employers cannot require that employees search for a replacement to cover their hours in order to receive paid sick time under the Act.

Exclusions

  • Excludes employers with greater than 500 employees.
  • The Secretary of Labor may exclude employers with fewer than 50 employees, if the requirements would jeopardize the viability of the business as a going concern.
  • The Secretary of Labor may exclude certain health care providers and emergency responders as eligible employees by allowing the employer to opt out.
  • An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employees.

Benefit

  • Full-time employees are entitled to 80 hours of paid sick time.
  • Part-time employees are entitled to paid sick time determined by the average number of hours worked over a 2-week period.
  • The employee must be compensated at the greater of the employee’s regular rate of pay, or the minimum wage.
    • However, for employees who are caring for a family member who is in isolation or experiencing symptoms, or who are caring for a child due to the closure of a school or child care facility, the employee will be paid two-thirds of the amount.
  • The benefit is capped at $511 per day or $5,110 total for leave under the first three reason – the employee’s own condition.
    • However, the benefit is capped at $200 per day or $2,000 total for the care of others.
  • The number of hours is determined by the hours the employee is normally scheduled to work.
    • If on a flexible schedule, the average number of hours is determined by the average hours the employee was scheduled per day over a 6-month period.
  • Employees may not carryover unused sick pay to the following year.
  • Employees may first use paid sick time available under the Act.
  • However, employers may not require employees to use other paid leave first before using paid sick leave under the Act.
  • Employers need not pay employees for unused paid sick time upon separation.

Application

  • The employee must provide the employer with “reasonable” notice of taking leave.
  • Employers must post notice of this Act in a conspicuous place, a model of which will be provided by the Secretary of Labor within 7 days of the enactment of the Act.
  • Protects against prohibited acts of discharging, disciplining, or discriminating against an employee who takes leave in accordance with the Act, or has filed a complaint related to the Act.
  • Employers who fail to provide paid sick leave under the Act are considered to have violated the minimum wage provisions of section 6 the FLSA, and are subject to penalties.
  • Employers who willfully engage in prohibited acts will be considered to be in violation of section 15(a)(3) of the FLSA, and are subject to penalties.
  • Employers who are signatory to multi-employer collective bargaining agreements (“CBA”) may, consistent with their CBAs, make contributions to a multiemployer fund or plan based on the hours of paid sick time each employee is entitled to under the Act; employees may secure pay from such fund or plan.
  • Nothing in the Act should diminish the rights or benefits an employee is entitled to under any law, collectively bargained agreement, or existing employer policy.
  • The Act takes effect 15 days after the date of enactment.
  • The Act expires on December 31, 2020.

III. Other Relevant Leave Laws:

In addition to the new laws, New York employers must also comply with all relevant federal, state and local laws and rules concerning sick leave, including the following summarized below.

A. Family and Medical Leave Act

The FMLA allows eligible employees to take up to twelve (12) weeks of job-protected unpaid leave for certain family and medical reasons, or up to twenty-six (26) weeks of unpaid leave to care for a covered service member. The following is an overview of leave under the FMLA:

  • Applies to private employers with 50 or more employees;
  • Applies to public employees regardless of number of employees;
  • Provides for twelve (12) weeks of unpaid leave in a twelve-month period;
  • Eligible after 1,250 hours worked during a twelve-month period;
  • Can be used for the serious health condition of the employee;
  • Can be used for the serious health condition of the employee’s family member;
  • Provides for twenty-six (26) weeks of unpaid leave in a twelve-month period to care for a covered service member with a serious injury or illness;
  • Employers can require employees to use accrued paid vacation leave, sick time or family leave while on FMLA leave
  • Protects against prohibited acts of interfering with FMLA rights, or discharging or discriminating against employees who exercises their rights under the FMLA.

B. New York Paid Family Benefits Law

Prior to recent legislation, New York State did not require private employers to offer paid sick leave.  Instead, under New York’s Paid Family Benefits Law, private employers with at least one employee are required to provide up to ten (10) weeks of job-protected paid family leave (“PFL”) to care for a family member with a serious health condition.  However, it cannot be used for an employee’s own serious health condition. If eligible, the employee can receive wage replacement benefits of 60% of the employee’s average weekly wage, up to the maximum of 60% of the current statewide average weekly wage of $1,401.17. The maximum weekly benefit for 2020 is $840.70. The following is an overview of leave under PFL:

  • Applies to private employers with one or more employee;
  • Public employers may opt in;
  • Eligible after 26 consecutive weeks of employment if regularly working 20 or more hours per week;
  • Eligible after 174 days worked if regularly working less than 20 hours per week;
  • Provides for up to ten (10) weeks of paid leave per year at up to 60% of benefits;
  • Can be used to care for a family member with a serious health condition;
  • Cannot be used for employee’s own serious health condition;
  • Employers cannot require employees to use paid time off while on PFL;
  • Protection against discrimination or retaliation for requesting or taking PFL.

C. New York City Earned Safe and Sick Time Act

Under New York City’s Earned Safe and Sick Time Act (“ESSTA”), employers with five (4) or more employees must allow employees who work at least 80 hours in a year in NYC with up to 40 hours a year of paid sick time.  Employers with one (1) to four (4) employees must allow employees who work at least 80 hours a year in NYC with up to 40 hours a year of unpaid sick leave.  Eligible employees can use accrued safe and sick leave for the care and treatment of themselves or a family member.  Note that if an employer provides employees time off for other purposes, such as vacation or personal leave, the employer does not have to provide additional time designated for safe and sick leave, if the employee can use that time off for safe and sick leave, and the employer’s policies otherwise meet the requirements for ESSTA.  The following is an overview of leave under the ESSTA:

  • For paid leave – applies to private and nonprofit employers with 5 or more employees who work 80 or more hours a calendar year in NYC;
  • For unpaid leave – applies to private and nonprofit employers with 1-4 employees who work 80 or more hours a calendar year in NYC;
  • Provides for up to 40 hours of sick leave per year, accrued at one hour for every thirty hours worked;
  • Applies to full and part time employees;
  • Eligible after 120 days of employment;
  • Can be used for the treatment of employee’s own health condition;
  • Can be used for the care or treatment of a family member;
  • Can be used for the closure of the employee’s workplace due to a public health emergency;
  • Can be used for an employee’s need to care for a child whose school or care facility is closed as a result of a declared public health emergency;
  • Protection against retaliation for use of earned sick leave.

D. Westchester County Earned Sick Leave Law

Similarly, Westchester County enacted the Westchester County Earned Sick Leave Law (“ESLL”), which requires employers with five (5) or more employees in Westchester to provide eligible employees with up to 40 hours of paid sick time per calendar year.  Employers with (1) to four (4) employees in Westchester must provide up to 40 hours of unpaid earned sick time.  The following is an overview of leave under the ESLL:

  • For paid leave – applies to private and nonprofit employers with 5 or more employees who work 80 or more hours a calendar year in Westchester;
  • For unpaid leave – applies to private and nonprofit employers with 1-4 employees who work 80 or more hours a calendar year in Westchester;
  • Provides for up to 40 hours of sick leave per year;
  • Applies to full and part time employees;
  • Eligible after 90 days of employment;
  • Can be used for the treatment of employee’s own health condition;
  • Can be used for the care or treatment of a family member;
  • Can be used for the closure of the employee’s workplace due to a public health emergency;
  • Can be used for an employee’s need to care for a child whose school or care facility is closed as a result of a declared public health emergency;
  • Protection against retaliation for use of earned sick leave.

IV. Sick Leave Laws Applicable to New York Employers:

In light of the new federal and state legislation, and other applicable sick leave laws already in place, employers in New York must provide the following benefits for employees unable to work due to the COVID-19 crisis.

LEAVE LAWS EMPLOYERS AFFECTED APPLICABILTY PAID SICK LEAVE REQUIRED UNPAID SICK LEAVE AVAILABLE
NY EMERGENCY SICK LEAVE All employers For employees subject to a mandatory or precautionary order of quarantine or isolation

*  Unless employee ignored travel ban

Applies immediately regardless of length of employment

 

Employers with 100 or more employees

·  14 days paid sick leave

 

Public employers

·  14 days paid sick leave

 

Employers of 11-99 employees

·   5 days paid sick leave

·   thereafter, employees can use paid family leave and disability benefits

 

Employers of 10 or less employees (and net income over $1 million)

·   5 days paid sick leave

thereafter, employees can use paid family leave and disability benefits

Unpaid sick leave for remaining duration of quarantine or isolation
NY EMERGENCY PAID FAMILY LEAVE All employers For employees subject to a mandatory or precautionary order of quarantine or isolation; or

To provide care for a minor dependent child subject to a mandatory or precautionary order of quarantine or isolation

Capped at $840.70 per week

Benefits may be payable concurrently with paid disability leave

NY EMERGENCY DISABILITY BENEFITS All employers For inability to work as a result of a mandatory or precautionary order of quarantine or isolation

*  Unless employee is asymptomatic and able to work

Applies immediately regardless of length of employment

Capped at $2,043.92 per week

Benefits may be payable concurrently with paid family leave

FFCRA –

EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT

Employers with fewer than 500 employees

* Employers with fewer than 50 employees may get exemption

* Employers of health care workers may opt out

* Employers of emergency responders may opt out

Only to care for child due to school closure

Applies to employees working 30 days prior to impact from Coronavirus

 

Yes, after first 10 days of leave

Paid at 2/3 regular rate

Capped at $200 per day or $10,000 total

Yes, during first 10 days of leave

Employee may substitute accrued paid leave during this time.

 

 

FFCRA-

EMERGENCY PAID SICK LEAVE ACT

Employers with fewer than 500 employees

* Employers with fewer than 50 employees may get exemption

* Employers of health care workers may opt out

* Employers of emergency responders may opt out

 

For employee under order of quarantine or isolation; or

For employee under advice of self-quarantine; or

For employee seeking medical diagnosis; or

To care for someone subject to order of quarantine or isolation; or

To care for child due to school closure; or

For employee experiencing other symptoms

Applies immediately regardless of length of employment

Yes, FT employees entitled to 80 hrs sick leave

Yes, PT employees entitled to average number of hours worked over a 2-wk period

Paid at regular rate for employee’s own quarantine, isolation, self-quarantine or to seek medical diagnosis.

·   Capped at $511 per day or $5,110 total

 

Paid at 2/3 regular rate to care for others

·   Capped at $200 per day or $2,000 total

FMLA Private employers with 50 or more employees

All public employers

For serious health condition of employee

For serious health condition of employee’s family member

Eligible after 1,250 hours worked during 12-month period

No Provides 12 weeks unpaid leave in 12-month period

Provides 26 weeks unpaid leave in 12-month period to care for service member

Employer can require employee to concurrently use accrued paid vacation, sick time or family leave

NY PFL All private employers

Public employers may opt-in

To care for family member with serious health condition only

Eligible after 26 weeks of regular employment

Provides up to 10 weeks of paid leave per year

·  Up to 60% of benefits

Employer cannot require employee to concurrently use paid time off

 

NY ESSTA All Employers For treatment of employee’s own health condition

For care or treatment of family member

For closure of employee’s workplace due to public health emergency

To care for a child whose school closed as a result of a public health emergency

Eligible after 120 days of employment

For employers with 5 or more employees

·   Up to 40 hours paid sick leave per year

 

 

For employers with 1 to 4 employees

·   Up to 40 hours unpaid sick leave per year

 

 

WESTCHESTER COUNTY ESLL All employers For treatment of employee’s own health condition

For care or treatment of family member

For closure of employee’s workplace due to public health emergency

To care for a child whose school closed as a result of a public health emergency

Eligible after 90 days of employment

For employers with 5 or more employees

·   Up to 40 hours paid sick leave per year

 

For employers with 1 to 4 employees

·   Up to 40 hours unpaid sick leave per year

 

Takeaway for Employers:

Employers should review all applicable leave policies to ensure coordination with the New York emergency paid leave law which takes effect immediately, and the Families First Coronavirus Response Act which takes effect within fifteen (15) days of its enactment.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP