COVID-19 Paid Sick Leave is Now Law

On March 18th, 2020, President Donald Trump signed into law the “Families First Coronavirus Response Act,” or “Act,” which is legislation aimed to offer temporary emergency paid sick leave relief to employees affected by the COVID-19 virus.

Qualifying Conditions

Employees who work for the government or for a company with fewer than 500 employees, regardless of length of tenure, are eligible for paid sick leave under the Act if they meet at least one of the following conditions:

  1. The employee is subject to a federal, state, or local quarantine or isolation due to COVID-19;
  2. A health care provider advised the employee to self-quarantine due to concerns related to COVID-19 (self-imposed quarantine without medical advice does not qualify under the Act);
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. The employee is caring for an individual who is either subject to a federal, state, or local quarantine or isolation due to COVID-19 or has been advised to self-quarantine due to concerns related to COVID-19;
  5. The employee is caring for the employee’s child whose school has been closed or place of care is unavailable due to COVID-19 precautions; or
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretaries of Treasury and Labor.

Full-time employees will be entitled to 80 hours’ worth of paid sick time. Part-time employees will be entitled to the number of hours they normally work in a two-week period. In calculating the pay benefit, the Act allows the following:

  • For conditions 1, 2, and 3 (listed above), eligible employees will receive paid sick leave at their regular rate of pay, except that in no event the amount paid should exceed $511 per day and $5,110 in total.
  • For conditions 4, 5, and 6 (listed above), eligible employees will receive paid sick leave at two-thirds of their regular rate, except that in no event shall the amount paid exceed $200 per day and $2,000 total.

Paid sick leave under this Act does not carry over from year to year and being paid the sick time will stop beginning with an employee’s next scheduled work shift immediately following the original need for the paid time. The employer can seek reimbursement for the emergency wages paid to the employees through tax credits applicable to the employer’s portion of Social Security taxes.

Employer Requirements

Employers cannot require eligible employees to use other company provided paid leave first before using the new paid sick leave under the Act, which means that this leave is in addition to any paid sick leave or PTO currently provided by employers. Employers also cannot require employees to give advanced notice prior to the start of taking this paid sick leave. Employers can however require employees to follow reasonable notice procedures to continue receiving paid sick time after the first workday they are off.

Finally, employers must post a notice that advises employees of their rights under the Act. The United States Secretary of Labor is required to create a notice by March 25.  (Note: Once published, Personnel Concepts subscribers will receive this mandatory update automatically in both digital and print format).

Exclusions

The Act states that U.S. Department of Labor can exempt businesses with fewer than 50 employees from providing the paid emergency leave when it would jeopardize the business’ viability. Companies with more than 500 employees are also excluded from the paid leave regulation.

The new law takes effect on April 1st, 2020 and will remain effective until December 31st, 2020.

 


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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UPDATED: Key Links for Employers During the Coronavirus Health Crisis

Last Updated on 3/30/2020

As employers throughout the U.S. struggle to maintain their businesses, keep workers safe, and transition some employees to work-from-home arrangements in light of the coronavirus pandemic, various federal government agencies have posted useful resources to answer questions and provide essential guidance about relevant workplace laws and regulations.

From the U.S. Department of Labor (DOL) to the Cybersecurity and Infrastructure Security Agency (CISA), multiple agencies have established comprehensive coronavirus resource pages to help employers navigate this national health crisis.

Paid Sick Leave: The U.S. Department of Labor (DOL) has created an overview of paid sick leave requirements during the coronavirus pandemic.  Additionally, all businesses with less than 500 employees must post a newly required Families First Coronavirus Response Act (FFCRA) paid sick leave poster in the workplace.

Wage & Hour and Employee Leave:  The DOL’s COVID-19 resource center includes helpful guidance regarding wage & hour issues under the Fair Labor Standards Act during the pandemic, as well as Q&A’s on applying the Family and Medical Leave Act during any widespread health emergency;

Business Loans and Economic Assistance: In late March, to support businesses impacted by COVID-19, the Coronavirus Aid, Relief, and Economic Security (CARES) Act was signed into law. The Act addresses business loans, unemployment benefits, retirement plans, tax credits, and executive compensation. Additionally, the Small Business Administration has established an online COVID-19 assistance page for businesses seeking economic relief during the global pandemic. Similarly, the IRS has established a Coronavirus Tax Relief web page.

Safety & Health Regulations:  OSHA’s safety and health web page addressing the coronavirus health crisis includes a useful overview of which OSHA standards and record keeping rules apply during the current pandemic;

Cybersecurity Concerns:  For employers shifting a portion of their workforce to work-from-home roles, CISA has posted a coronavirus resource page that includes cybersecurity alerts and guidance for telecommuting programs;

Medical Privacy: For employers with 15 or more employees who have to comply with the Americans with Disabilities Act (ADA), the Equal Employment Opportunity Commission (EEOC) has released guidance addressing reasonable accommodations, medical privacy issues, and temperature checks during the COVID-19 outbreak;

Military Leave (National Guard):  Employers with employees who are members of the national guard must follow the Uniformed Services Employment and Re-employment Rights Act (USERRA) if these employees are called into active duty.  The DOL’s Veterans Employment and Training Service (VETS) publishes a pocket guide on USERRA that includes a checklist for employers.

Essential Industries:  As stay-at-home directives come into effect or loom on the horizon for many communities, the State of Pennsylvania’s list of essential “life-sustaining businesses” can help companies in other states determine how likely they are to stay open during aggressive social distancing measures;

Cleaning & Disinfection Guidelines: The Centers for Disease Control & Prevention (CDC) has included recommendations on cleaning and disinfecting potentially infected areas on its existing employer preparedness resource page;

Approved Disinfectants: To aid in effective cleaning & disinfecting to prevent the spread of the virus, the Environmental Protection Agency (EPA) has released a list of disinfectants approved for use against SARS-CoV-2, the coronavirus that causes COVID-19.

Employers and their key managers should review these resources to ensure they understand the most current employment-related guidance, particularly when professional legal advice is not readily available.   These resources should also be regularly re-visited to check for any updates.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Revised Form I-9 Implementation Deadline is 4/30/2020

Employers who haven’t yet started using the latest version of the Form I-9 for new hires have until April 30th, 2020, to incorporate the revised form into their hiring process.

Back on January 31st, 2020, the United States Citizenship and Immigration Services Division (USCIS) published a Form I-9 Federal Register notice announcing a new version of Form I-9, Employment Eligibility Verification, that the Office of Management and Budget had previously approved on October 21st, 2019.

This latest version (version 10/21/2019) contains minor changes to the form and its instructions.  Per the Federal Register notice published in January, employers can continue using the prior version of the form (Rev. 07/17/2017 N) until April 30th, 2020.   After that date, businesses can only use the new form with the 10/21/2019 version date. The version date is located in the lower left corner of the form.

The only changes on the form itself were revisions to the Country of Issuance field in Section 1 and the Issuing Authority field (when selecting a foreign passport) in Section 2 to add Eswatini and Macedonia, North per those countries’ recent name changes. (Note: This change is only visible when completing the fillable Form I-9 on a computer.)  Changes to the instructions include clarifications regarding authorized employer representatives and acceptable documents.

Any employers who have not yet implemented the 10/21/2019 version must begin doing so by April 30th to ensure full compliance with I-9 documentation requirements.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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CDC Releases Interim Guidance for Employers on Coronavirus (COVID-19)

On February 26th, the U.S. Centers for Disease Control & Prevention (CDC) launched new interim resources to help employers prepare for and respond to the coronavirus (COVID-19) outbreak.   The new guidance addresses recommended best practices for preventing the spread of illness in the workplace and planning for how to address any known or suspected cases among employees.

The agency’s recommendations include the following fundamental steps:

  • Actively encourage sick employees to stay home
  • Separate sick employees
  • Emphasize staying home when sick, respiratory etiquette and hand hygiene by all employees
  • Perform routine environmental cleaning with products known to be effective
  • Advise employees before traveling to take certain steps
  • Keep your workers informed about known or suspected cases, but don’t violate medical privacy laws

Additionally, the guidance provides tips and resources for creating a comprehensive workplace response plan that includes temporary adjustment of workplace policies, flexible scheduling (including telecommuting), and social distancing.

The full guidance is available at the following link: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Final Rule on Joint Employer Status Takes Effect on March 16th, 2020

On January 20th, 2020, the U.S. Department of Labor (DOL) released a final rule that interprets joint employer status under the Fair Labor Standards Act (FLSA).

The final rule provides updated guidance for determining joint employer status when an employee performs work for his or her employer that simultaneously benefits another individual or entity, including guidance on the identification of certain factors that are not relevant when determining joint employer status.

Among other clarifications and provisions, the final DOL rule:

  • specifies that when an employee performs work for the employer that simultaneously benefits another person, that person will be considered a joint employer when that person is acting directly or indirectly in the interest of the employer in relation to the employee;
  • provides a four-factor balancing test to determine when a person is acting directly or indirectly in the interest of an employer in relation to the employee;
  • clarifies that an employee’s “economic dependence” on a potential joint employer does not determine whether it is a joint employer under the FLSA;
  • specifies that an employer’s franchisor, brand and supply, or similar business model and certain contractual agreements or business practices do not make joint employer status under the FLSA more or less likely; and
  • provides several examples applying the Department’s guidance for determining FLSA joint employer status in a variety of different factual situations.

The effective date of this final rule is March 16th, 2020.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Lipnic Won’t Seek Third Term on EEOC

Victoria Lipnic, a Republican first appointed by President Obama, has announced that she will not seek a third term as a commissioner for the Equal Employment Opportunity Commission (EEOC) after her current appointment ends on July 1.

Victoria Lipnic

With only three members currently serving on the agency, that would render the EEOC quorum-less and unable to issue rulings. However, she has indicated she would be willing to stay after her term if needed. If President Trump nominates a replacement, she can stay in her position for 60 days after July 1. If he doesn’t nominate anyone, she can stay until the end of the Congressional session.

The other two members on the commission are Chair Janet Dhillon, a Republican nominated by President Trump, and Charlotte Burrows, a Democrat and Obama appointee.

Before Chair Dhillon was confirmed by the Senate, Lipnic served as acting chair. With Chai Feldblum, a Democrat, she led a task force that created guidance on workplace harassment before Trump took office. She is still at odds with the Department of Justice (DOJ) in believing that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Retaliation Tops Charges Filed with EEOC in FY 2019

The Equal Employment Opportunity Commission (EEOC) has released detailed breakdowns for the 72,675 charges of workplace discrimination the agency received in fiscal year 2019. The comprehensive enforcement and litigation statistics for FY 2019, which ended Sept. 30, 2019, are posted on the agency’s website, which also includes detailed breakdown of charges by state.

eeoc-files-seven-sexual-harassment-lawsuits-#metooThe FY 2019 data show that retaliation continued to be the most frequently filed charge filed with the agency, followed by disability, race and sex. The agency also received 7,514 sexual harassment charges — 10.3 percent of all charges, and an  1.2 percent decrease from FY 2018.  Specifically, the charge numbers show the following breakdowns by bases alleged, in descending order:

  • Retaliation: 39,110 (53.8 percent of all charges filed)
  • Disability: 24,238 (33.4 percent)
  • Race: 23,976 (33.0 percent)
  • Sex: 23,532 (32.4 percent)
  • Age: 15,573 (21.4 percent)
  • National Origin: 7,009 (9.6 percent)
  • Color: 3,415 (4.7 percent)
  • Religion: 2,725 (3.7 percent)
  • Equal Pay Act: 1,117 (1.5 percent)
  • Genetic Information: 209 (0.3 percent)

These percentages add up to more than 100% because some charges allege multiple bases.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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OSHA Form 300A Injury and Illness Tracking Must Be Posted by Feb. 1

The Occupational Safety and Health Administration (OSHA) requires firms with 250 or more employees and those in high-hazard industries with 20 to 249 employees to post Form 300A in their workplace from Feb. 1 to April 30.

OSHA-form-3ooa-must-be-posted--by-Feb.-1The form summarizes work-related injuries and illnesses from the previous calendar year and must be posted in a conspicuous place.

In addition, the data on the form must be submitted to OSHA by March 2.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Chipotle Fined $1.3 Million for Child Labor Violations

Fast casual chain Chipotle has agreed to pay $1.3 million in fines for child labor violations in Massachusetts.

chipolte-workers-sue-to-get-overtime-payThe fine caps a three-year investigation following a complaint by a parent whose kid was forced to work “well past midnight.”

In the course of the investigation, the state’s attorney general’s office discovered more than 13,000 child labor violations, including working without proper permits, working late into the night, and working more hours allowed per day and per week. Some 50 Chipotle locations were involved.

“Chipotle is a major national restaurant chain that employs thousands of young people across the country and it has a duty to ensure minors are safe working in its restaurants,” Attorney General Maura Healey said in the statement. “We hope these citations send a message to other fast food chains and restaurants that they cannot violate our child labor laws and put young people at risk.”


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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SCOTUS Won’t Review Obamacare Ruling This Term

While a district judge in Texas weighs the fate of the Affordable Care Act (ACA, or Obamacare), an appeal to the Supreme Court to review the circuit court ruling that struck down the ACA’s individual mandate has been rejected for this term. The court could choose to take it up come next October, but this effectively means that Judge Reed O’Connor — whatever he may decide — is the sole remaining arbiter of the ACA’s constitutionality before the November election.

EEOC-lawsuits-return-to-normalOn Dec. 18, the 5th U.S. Circuit Court of Appeals issued its decision from a July 9th hearing on Judge O’Connor’s 2018 ruling that the entire law is unconstitutional. The three-judge panel, however, agreed only with the judge’s ruling that the individual mandate is unconstitutional. It then ordered him to review the law in greater depth and forward his findings about what’s valid and what’s not. So the circuit court in New Orleans still holds sway over whatever he decides.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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