The Department of Labor issued additional FAQs on Thursday March 26. They now offer 37 FAQs on how the paid sick leave and expanded FMLA leave under the Families First Coronavirus Response Act will apply. The leave obligations begin April 1, 2020.

As more and more employers are required to shutdown due to state orders or layoff employees due to business concerns, a frequently asked question is whether the employees impacted by these closures and layoffs will still be eligible for paid sick leave and paid FMLA leave under the FFCRA. According to the FAQs issued by the DOL, they will not:

24. If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?

No. If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility.
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26. If my employer is open, but furloughs me on or after April 1, 2020 (the effective date of the FFCRA), can I receive paid sick leave or expanded family and medical leave?

No. If your employer furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

In addition to several FAQs on the impact of layoffs and furloughs, the FAQs also address what documentation employers should request, whether the paid sick leave and paid FMLA can be used intermittently and whether other employer-offered paid leave can be used concurrently with that required by FFCRA.

Please visit our COVID-19 resource webpage often to stay abreast of the developments or contact your JL attorney directly with any questions. For more information regarding COVID-19 issues employers face and about the Families First Coronavirus Response Act (March 26), tune in to our Daily Briefing webinars using this link to register.

The Department of Labor published today the required poster for employers under the Families First Coronavirus Response Act.  We, like many of you, noticed that the DOL’s poster appears to have an error in it as it leaves off the pay requirement with respect to paid sick leave for reason 5 (school closings) and then claims the additional 10 weeks of pay under the expanded FMLA is capped at $12,000 instead of $10,000.*  We believe this is just an oversight and likely will be fixed.  In the meantime, the poster can be found here.

In addition, the DOL issued FAQs concerning the poster, which can be found here.

As referenced in our post yesterday the Families First Coronavirus Response Act  will begin to apply to leaves on April 1, 2020.  We are sure there is more to come, as regulations are still expected and Congress continues to debate whether other changes will be forthcoming.  Stay tuned…

For more information regarding COVID-19 issues employers face and about the Families First Coronavirus Response Act (March 26), tune in to our Daily Briefing webinars using this link to register.

*After this article was published, the DOL revised the poster correcting the error and clarifying that an employee can take “Up to 12 weeks of paid sick leave and expanded family and medical leave paid at 2/3 for qualifying reason #5… for up to $200 daily and $12,000 total.”

The Department of Labor has published FAQs on the application of the Families First Coronavirus Response Act.  According to the DOL, the Act will apply to  leave taken between April 1, 2020 and December 31, 2020.  In addition to providing the effective date, the FAQs answer questions about how an employer knows if it is under the 500 -employee threshold and, therefore, subject to the Act and how to calculate hours for part-time employees. The DOL tells small employers who wish to fall under the small business exemption that they will need to document why their business meets the criteria that will be set forth by the Department in forthcoming regulations.  The law in this arena is changing almost as quickly as the infection spreads – stay tuned.  We are expecting the required notice to be published by the Department this week, and it has promised future regulations as early as next week.  Meanwhile, Congress continues to debate additional changes.  Please visit our COVID-19 resource webpage often to stay abreast of the developments or contact your JL attorney directly with any questions.

 

Effective March 18, 2020, the Seattle Paid Sick and Safe Time (PSST) Ordinance allows eligible employees working in Seattle to use PSST when their family member’s school or place of care is closed, regardless of whether such closure is made by a public official. In addition, when “Tier 3” employers (with 250 or more full time equivalent employees worldwide) reduce operations or close a Seattle worksite for any health or safety reason, those employees are now able to use PSST for that reason. Thus far, neither the City Council nor the Office of Labor Standards has provided guidance on what exactly is meant by a reduction in operations.

Previously, PSST was not guaranteed to employees whose child’s school closed for health reasons (but not by a public official), or whose other family member’s place of care was closed for health reasons. Nor was PSST guaranteed to employees of a “Tier 3” employer that simply reduced its Seattle operations or closed its Seattle worksite for health or safety reasons.

Employers should also consider the dramatic impact of the brand-new federal Families First Coronavirus Response Act (H.R. 6201), which provides paid family and medical leave and paid sick leave at the federal level. Those paid leave entitlements are separate and apart from the existing Washington Paid Family and Medical Leave Program and the PSST already available to workers in Seattle and throughout the state. Please contact Jackson Lewis attorneys for additional information on this and other workplace issues.

©2020 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Focused on labor and employment law since 1958, Jackson Lewis P.C.’s 950+ attorneys located in major cities nationwide consistently identify and respond to new ways workplace law intersects business. We help employers develop proactive strategies, strong policies and business-oriented solutions to cultivate high-functioning workforces that are engaged, stable and diverse, and share our clients’ goals to emphasize inclusivity and respect for the contribution of every employee. For more information, visit https://www.jacksonlewis.com.

On March 19, 2020, the Equal Employment Opportunity Commission updated its 2009 pandemic preparedness guidance: Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. Our colleague in the Privacy, Data and Cybersecurity practice group published an alert discussing the updates. Read more.

As reported over the weekend, the House of Representatives passed H.R. 6201, also known as the Families First Coronavirus Response Act, early Saturday morning. Yesterday, the House began making changes and we understand the Senate is currently considering its own changes. We will provide updates on significant changes to this bill once more information is learned. We know there was discussion about changing the reasons for use of the proposed expanded FMLA and paid sick leave, and discussion about capping the dollar amount of both. Stay tuned. As with everything related to COVID-19, things are changing daily and sometimes by the hour. If you need assistance with these or other issues related to COVID-19, you can contact the Jackson Lewis attorney with whom your normally work or the firm’s Coronavirus/COVID-19 Task Force.

With 53 presumptive-positive cases of the novel coronavirus (COVID-19) in Michigan as of March 15, Michigan is taking proactive steps to reduce transmission of the virus. Below is a brief synopsis of what employers need to know.

On March 10, 2020, Michigan’s Governor Gretchen Whitmer declared a state of emergency in Executive Order 2020-4. Two later, on March 13, 2020, Governor Whitmer issued Michigan Executive Order 2020-5, which prohibits all events and “single shared space” assemblies of more than 250 people. There are 3 exceptions to this: (1) industrial or manufacturing work, (2) mass transit, and (3) assembly for the purchase of groceries or consumer goods. A “single shared space” includes but is not limited to a “room, hall, cafeteria, auditorium, theater, or gallery,” and there is no express exception for private employers. We have contacted the governor’s office to confirm whether “single shared space” would include open-concept workspaces because it appears to. We will update this blog post on receipt of that additional information.

The order also closes all K-12 buildings, though residential and child care facilities at schools can remain open. This order is in effect until April 5, 2020, at 5 p.m. A willful violation of the order constitutes a misdemeanor. According to Michigan’s Attorney General, violations could lead to penalties, such as the loss of a business liquor license.

In light of Michigan’s approach to this ever-evolving issue:

  • Periodically check the State of Michigan’s Coronavirus website here. For example, the governor has indicated that she may close all restaurants and bars beginning on March 16 at 3 p.m., with the exception of carry-out. An executive order related to this would likely be posted to this website.
  • Remember that Michigan’s Paid Medical Leave Act allows employees to take paid medical leave related to the closure of the workplace by order of a public official due to a public health emergency, to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency, or if it has been determined by health authorities that the employee or the employee’s family member’s presence in the community would jeopardize the health of others (i.e., the current situation).
  • Check the public health department websites for counties in which you have employees or facilities for local restrictions. For example, on March 16, Oakland County began requiring all bars, restaurants, entertainment facilities and physical fitness facilities to reduce capacity to 50%.
  • Employers subject to EO 2020-5 should eliminate assemblages of at least 250 persons. Consider limiting travel to educational conferences, having some employees work from home (if they are not already), creating a more frequent shift rotation, or separating employees across several shared spaces/facilities to reduce the number of employees in one space.
  • Employers must still maintain hours worked records for non-exempt employees, even if they are working from home. If you do not currently have a system for having hourly employees report their hours worked, create one, even if it is just in the form of a spreadsheet or emails from the employees reporting their hours worked.
  • If your employees will be working from home for an extended time, consider updating telecommuting policies to make clear that employees are expected to maintain the safe conditions and confidentiality practices at home that they would on company premise, if not more so. The telecommuting policy should also state that the company assumes no responsibility for injuries to third parties who may be present at the employee’s home office. Also, determine what expenses the company will reimburse in this situation.
  • Consider adding some flexibility to telecommuting policies and work hours, given that all K-12 schools are also closed through April 5. Children will be at home with their working parents, which may impact productivity during certain hours of the day.
  • For foreign nationals working under temporary non-immigrant work visas, there may be restrictions on working remotely, changes in location, changes in pay, and changes in hours and other conditions of employment, depending on the particular visa classification. Employers must ascertain whether they are required to notify the U.S. Citizen & Immigration Services of changes in the conditions of employment for employees that are working under such a non-immigrant work visa.

To keep on top of how COVID-19 may impact your workplace, subscribe to Jackson Lewis P.C.’s Disability, Leave & Health Management blog and contact a JL attorney with specific questions.

Following the outbreak of the Coronavirus (COVID-19) and the World Health Organization’s declaration of a pandemic, on March 12, 2020, the Puerto Rico House of Representatives approved House Bill 2428 to establish a new unpaid emergency leave of 20 days for employees with a suspected or actual diagnosis of a pandemic illness.

HB 2428 seeks to amend Puerto Rico Law 180-1998, which establishes paid sick and vacation leave benefits to some private sector employees, excluding employees classified as executives, administrators, and professionals, among others.

If HB 2428 is enacted, employees who are sick or suspected of being sick as a result of a pandemic illness during a state of emergency declared by the Governor of Puerto Rico, or the Secretary of the Department of Health, must first use any accrued sick leave. Once accrued sick leave is exhausted, employees may use accrued vacation leave to receive pay during any absence. Should the employee need additional leave, HB 2428 provides an unpaid emergency leave of 20 working days. Under the bill, employers may allow employees to use the unpaid emergency leave before using accrued vacation leave. Read more.

Confirmed Coronavirus (COVID-19) cases have risen swiftly in California and in response, administrative agencies have released guidance to employers regarding wage and hour issues and paid sick leave.

Late last, week, the Labor Commissioner’s office provided input on administering paid sick leave in light of coronavirus. The Labor Commissioner indicated that preventative care under paid sick leave would include self-quarantine as a result of potential exposure to COVID-19 if recommended by civil authorities or if the employee has traveled to a high-risk area.

Please find the rest of this article on our California Workplace Law Blog.

Pittsburgh employers take note:  March 15, 2020 is right around the corner.  That is when the Pittsburgh Paid Sick Days Act finally goes into effect after its years-long journey through the City Council, the Mayor’s Office, and the Pennsylvania courts.

The ordinance requires employers with 15+ employees to provide paid sick leave, up to 40 hours per year, at a rate of 1 hour of leave for every 35 hours worked.  Employers with less than 15 employees must also provide paid sick leave at the same accrual rate, up to 24 hours per year.

Employers should take note that employees who work in the City can be covered under the law, even if the employer is not physically present there.  That is because the ordinance defines employers as any entity “situated or doing business in the City” and defines employees as anyone who works for such an employer and “who performs work within the geographic boundaries of the City of Pittsburgh for at least 35 hours in a calendar year.”

We previously posted about the ordinance here, shortly after the City revealed the law’s effective date.  The City also released guidelines on employee rights and employer obligations under the ordinance, which can be found here.

For guidance on leave management issues, please contact a Jackson Lewis attorney. Register here if you would like to receive information about our workthruIT® Leave & Accommodation Suite. The Leave & Accommodation Suite provides subscribers an expanding array of tools to manage leave and accommodation issues, including electronic access to a state and local leave law database that is developed and updated continually by our Disability, Leave & Health Management attorneys.