DOL Issues Regulations on Emergency Paid Sick Leave and Expanded FMLA Leave

Posted in Labor Relations, Medical & Other Leaves, Wage & Hour

Demonstrating that guidance on the newly mandated Emergency Paid Sick Leave and Expanded Family and Medical Leave is fluid, on April 6, 2020, the United States Department of Labor (DOL) published new regulations as a “temporary rule” expanding on and tinkering with its prior guidance under the Families First Coronavirus Response Act (FFCRA). The new rule became effective on April 2, 2020. House Democrats have already challenged certain provisions as inconsistent with the FFCRA and asked they be removed. Whether that will happen remains to be seen.

In the meantime, among other things, the new rule provides guidance on the definitions of “quarantine or isolation order,” “health care provider,” “son or daughter,” “child care provider,” and “place of care.” It also lays out documentation and recordkeeping requirements, and clarifies the applicability of the small business exemption from the leave provisions. Each are discussed in more detail below.

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Paycheck Protection Program Open for Business

Posted in Employment Counseling & Workplace Claims Prevention, Wage & Hour

Small businesses can begin applying for loans under the Paycheck Protection Program today, April 3, 2020, but should keep in mind that under new interim guidance, 75% of the forgiven amount over the eight week period following origination of the loan must be used for payroll purposes. Independent contractors and self-employed individuals can apply starting April 10, 2020. The application can be found here. The Paycheck Protection Program is part of the recently passed Coronavirus Aid, Relief, and Economic Security Act (CARES Act).

The SBA’s interim guidance was issued on April 3, 2020, to address certain gaps in the CARES Act. Most notably, it limits loan forgiveness in a way that was not previously enumerated in the text of the CARES Act. The guidance explains that this limit is necessary to “effectuate the core purpose of the statute and ensure finite program resources are devoted primarily to payroll.” The application for borrowers mirrors this new guidance by requiring all borrowers to certify that they understand that not more than 25% of the forgiven amount may be for non-payroll costs. Businesses should keep this in mind when they apply, as previously, there was no stated limit on how the loan would need to be apportioned between rent, mortgage, utilities, and payroll to qualify for forgiveness.

Businesses may apply through any existing SBA 7(a) lender or through any federally insured depository institution, federally insured credit union, and Farm Credit System institution that is participating. Other regulated lenders will be available to make these loans once they are approved and enrolled in the program. You should consult with your local lender as to whether it is participating. The guidance also makes clear who must sign the application:

  • For a sole proprietorship, the sole proprietor;
  • For a partnership, all general partners, and all limited partners owning 20% or more of the equity of the firm;
  • For a corporation, all owners of 20% or more of the corporation;
  • For limited liability companies, all members owning 20% or more of the company; and
  • Any Trustor (if the Applicant is owned by a trust).

Businesses should begin gathering the documents (and signatures) needed for the application now so that they can apply on April 3, 2020 as it is expected that there will be a high demand for Paycheck Protection Program loans. The guidance makes clear that all loans will be awarded on a first come first served basis.

For lenders seeking to offer loans under the CARES Act, the SBA has posted its lender application here.

If you need assistance with the Paycheck Protection Program or other aspects of the recent legislation surrounding COVID-19, contact your Akerman attorney.

Relief for Employers in the CARES Act

Posted in Employee Benefits, Employment Counseling & Workplace Claims Prevention, Medical & Other Leaves, Wage & Hour

The Federal Corona Aid, Relief, and Economic Security Act (CARES), approved Friday in the wake of COVID-19 pandemic, provides businesses with a myriad of opportunities for relief, including expansion of unemployment benefits, advance refunding of tax credits for employers that provide expanded FMLA leave and emergency paid sick leave, small business loan programs, debt forgiveness, and more. Summaries of the tax provisions and provisions affecting health and welfare benefit plans are available here and here. Below are some of the key aspects of this new law and how it impacts employees and certain businesses.

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CARES Act Impacts to Employer-Sponsored Health and Welfare Benefit Plans

Posted in Employee Benefits, Employment Counseling & Workplace Claims Prevention

Health and welfare benefit plans and insurers are affected by various provisions of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) passed on March 27, 2020. In addition to provisions impacting tax-qualified retirement plans and executive compensation (summarized here), the CARES Act affects coverage of diagnostic testing, preventive services, telehealth services, and drug reimbursement. Here are the highlights:

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Cracking Down on Employers Misclassifying Employees as Independent Contractors

Posted in Employment Counseling & Workplace Claims Prevention, Wage & Hour

New Jersey has joined California and New York City by adding significant new penalties and requirements on employers doing business in the Garden State, including new penalties for misclassifying workers as independent contractors and new posting requirements effective April 1, 2020. Illinois, New York, Oregon, Washington, Wisconsin, and Florida considered various forms of legislation on worker misclassification in 2019, and other states may soon join the parade.

Employers in New Jersey now face penalties and other requirements set forth in six new statutes for the misclassification of workers as independent contractors. All but one of the laws already took effect this year. The new one requires employers to post a warning against the misclassification of employees and is effective on April 1, 2020.

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Summary of Key Tax Provisions in Historic Senate CARES Act Legislation

Posted in Employee Benefits, Employment Counseling & Workplace Claims Prevention

On March 26, the Senate passed the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act), which advances legislation intended to help Americans and businesses survive a public health and economic crisis due to COVID-19. This article provides a summary of key tax provisions in the CARES Act. The bill now moves to the House, which is expected to be finalized and voted on quickly.

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New Unemployment Obligations for Georgia Employers

Posted in Employment Counseling & Workplace Claims Prevention, Wage & Hour

Employers faced with layoffs and furloughs need to pay close attention to state unemployment laws, which are in flux and in some instances may impose extraordinary burdens on employers. For example, Georgia has extended unemployment benefits and now requires employers to file for benefits on behalf some employees impacted by COVID-19 as a result of certain changes to state unemployment compensation regulations promulgated on March 19 and March 25.

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Department of Labor Issues FFCRA Guidance, Poster

Posted in Labor Relations, Medical & Other Leaves, Wage & Hour

A flurry of publications from the United States Department of Labor (DOL) provide employers with additional details regarding the recently-passed Families First Coronavirus Response Act (FFCRA). Q&A guidance issued March 24 establishes an April 1, 2020 effective date and explains how to calculate the 500-employee threshold and hours used to determine employees’ leave entitlement. A March 24 Wage and Hour Division enforcement memorandum indicates that the Act will be subject to a 30-day limited non-enforcement period. Finally, the DOL published a required poster and guidelines for posting notices in an era of remote working. Employers subject to the FFCRA should familiarize themselves with each of these publications before the law takes effect.

The FFCRA, signed into law on March 18, 2020, provides assistance to employees and reimbursable tax credits to employees. The FFCRA requires employers with fewer than 500 employees to provide eligible employees with paid sick leave under two provisions: the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. A detailed summary of the FFCRA is available here. Continue Reading

COVID-19 Inquiries and Disclosures in the Workplace

Posted in Employee Benefits, Employment Counseling & Workplace Claims Prevention

Once an employee has been exposed to a suspected or confirmed case of COVID-19, what do you do? Once an employee has tested positive, what do you say? How does an employer walk the fine line between protecting the privacy of affected individuals and ensuring the safety of others in the workplace?

Because a national public health emergency has been declared and all 50 states and the District of Columbia have issued similar declarations, employers may go much further in their medical inquiries and exams.

Employers should ask employees to notify Human Resources if the employee has been exposed to a suspected or confirmed case of COVID-19, so that the employer can take precautions. The same is true if the employee has tested positive for coronavirus. All self-reports by employees should be kept confidential and should be noted in separate employee medical files that the employer maintains, not in the employee’s personnel file.

The message to employees should be couched in terms making clear that asking employees to self-report is part of the employer’s effort to keep co-workers safe and stop the spread of the virus. Emphasize that finding out about exposure or potential exposure quickly is key, and given the delay with obtaining tests and test results, self-reporting is paramount.

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Notice Requirements When Furloughing Or Laying Off Workers in the Pandemic

Posted in Employment Counseling & Workplace Claims Prevention, Labor Relations, Wage & Hour

Employers contemplating layoffs or furloughs of employees as a result of the COVID-19 outbreak need to be careful. Even if they are not subject to the federal Worker Adjustment and Retraining Notification Act (WARN Act), they may be obligated to provide various notices under state “mini-WARN” acts or other state laws.

Below is a quick overview of how these federal and state laws can impact employers.

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