When all this is over and the UK looks back to see what we learnt from the Coronavirus crisis, maybe somewhere on the list will be a point on making law by Twitter. #askRishi on Friday evening was an extremely brave attempt on the Chancellor’s part to engage with the detailed issues arising from the Job Retention Scheme , but it does create some interesting questions for future judicial interpretation when what employers are relying on are essentially on-the-hoof announcements with the lifespan of a mayfly. Next stop, law by Snapchat.
During the second half of March 2020, the US Congress passed three landmark pieces of legislation addressing the COVID-19 (a/k/a novel coronavirus) pandemic. One of these was the Families First Coronavirus Response Act (FFCRA). Under this law, employers of fewer than 500 employees are required to provide eligible employees with up to 80 hours of paid sick leave benefits as well as up to 10 weeks of partially-paid family leave, in each case, when an eligible employee is unable to work or telework due to certain COVID-19 related reasons. The FFCRA went into effect on April 1, 2020, and on that same date, the U.S. Department of Labor issued extensive regulations providing further detail on the benefits available and employer obligations under the FFCRA. In this In-Depth Analysis, Squire Patton Boggs will be analyzing these regulations in a five-part series of blog posts.
In this first post, we address employer coverage, including when employers will be considered joint employers and single integrated enterprises under the FFCRA and the application of the law’s small business (fewer than 50 employees) exemption, as well as employee eligibility under the FFCRA, including the health care provider and emergency responder exceptions.
Click here to download Part One of the series.
As anyone who has spent the last fortnight trying to apply the Government’s CJRS knows, there is currently no actual law. Bar some guidance clearly not written by employment or HR specialists (hence indiscriminate references to workers and employees, and use of “laid-off” to mean both put on leave without pay and made redundant), pretty much everything else is speculation, inference, press comment, leaks and that chap on Twitter whose uncle heard something at a bus stop outside Parliament. It is not a good way to make law.
The United States currently is experiencing an unprecedented public health emergency due to the COVID-19 virus. The economic fallout of this crisis has been sudden and brutal on US employers, with vast numbers of businesses ordered to close and nearly 1 million new unemployment claims filed in the past two weeks alone. In response, Congress has passed several new laws to take emergency action to address the impact on employers and employees. These laws and the speed at which they were put in place has left many overwhelmed and with many questions about what obligations they impose and how they will operate, if they can at all, through this crisis.
Although there is a certain feeling that in unprecedented times like this, employers should have more flexibility to take what could be potentially business-saving measures, no matter how drastic, it is important for employers to remember that, even during these trying times, the laws enforced by the US Equal Employment Opportunity Commission (EEOC)—including Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Genetic Information Nondiscrimination Act (GINA)—all continue to apply. Indeed, the EEOC has made clear that employers’ obligations under these laws do not interfere with or prevent employers from following the guidelines and suggestions made by the Centers for Disease Control (CDC) or from complying with state and local public health authorities concerning steps employers should take regarding COVID-19. Continue Reading
Back in 2016 we commented on the increasing breadth of the vicarious liability concept as seen in a claim against supermarket chain Morrisons [here]. The store was held liable to a customer who was violently assaulted by one of its petrol station attendants in direct contravention of the criminal law, his training and all reasonable principles of putting the customer first. Last year the High Court extended it even further in a decision which made difficult reading for employers and their insurers.
Some questions answered, many still remain
On April 1, 2020, the U.S. Department of Labor (DOL) released new regulations (29 CFR Part 826), attempting to clarify certain provisions in the Families First Coronavirus Response Act (FFCRA). As we previously reported here, under the Emergency Paid Sick Leave Act provision of the FFCRA, certain public employers and private employers with fewer than 500 employees must provide up to eighty (80) hours of emergency paid sick leave (a prorated amount for part-time employees) (EPSL) if the employee is unable to work or telework because of one of these six qualifying reasons:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing symptoms of COVID-19 and seeking medical diagnosis from a health care provider;
- The employee is caring for an individual who is subject to a quarantine or isolation order or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is caring for his or her son or daughter whose school or place of care has been closed for a period of time, whether by order of a State or local official or authority or at the decision of the individual school or place of care, or the child care provider of such son or daughter is unavailable, for reasons related to COVID-19; or
- The employee has a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor.
The DOL’s regulations – notable for the speed in which they were published, about a week after the FFCRA became law – help to explain the reasons for which EPSL may be taken with greater precision.
Tax credits may be available to employers who are required to pay additional wages to employees under the Families First Coronavirus Response Act (the “FFCRA”). Specifically, tax credits may be available to employers who are required to pay employees under the Emergency Sick Pay Leave and the Emergency Family and Medical Leave portions of the FFCRA (the “Leave Acts”).
In addition, the Coronavirus Aid, Relief, and Economic Security Act (“CARES” Act) may provide an employer with an “Employee Retention Tax Credit” for wages to paid to active or furloughed employees, in certain circumstances where either (a) the business cannot operate due to a government order, or (b) gross receipts from business have declined by more than 50%. Generally, the Retention Credit is equal to 50% of the qualified wages paid to an employee, with the maximum allowable credit being $5,000 per employee. Continue Reading
Employers with fewer than 500 employees and those that are under the applicable Small Business Administration size standards have been eagerly awaiting more information on how to apply for and obtain loans under the “Paycheck Protection Program” (PPP) portion of the CARES Act, passed to address the economic impacts of the ongoing COVID-19 pandemic. The PPP is intended to provide an incentive to small businesses to retain their workers during this crisis by offering government-backed loans that, if the applicable conditions are met – including keeping employees on payroll for eight weeks and using the loan proceeds for payroll, rent, mortgage interest, or utilities – will be forgiven. A more detailed summary of the PPP, including eligibility criteria and other loan conditions, is available here.
On March 31, 2020, the SBA notified the public that those interested in obtaining a PPP loan may apply as soon as April 3, 2020 with any existing SBA Section 7(a) lender, or through any federally insured depository institution, federally insured credit union, and Farm Credit System institution that is participating. The SBA additionally indicated that other regulated lenders would be available to make PPP loans once they are approved and enrolled in the program. Continue Reading
In non-coronavirus related developments, on March 16, 2020, the National Labor Relations Board (NLRB or Board) issued a decision in Baylor University Medical Center, reversing an Administrative Law Judge (ALJ) decision that found certain severance agreement provisions to be unlawful under Section 8(a)(1) of the National Labor Relations Act (NLRA). Section 8(a)(1) prohibits employers from interfering with employees’ rights to act collectively to improve the terms and conditions of their employment. The decision is noteworthy as another example of the current Board’s effort to rein in the sort of overexpansive interpretations of the NLRA that were the legacy of prior Boards.
The severance agreement provisions at issue, used regularly by Baylor’s Medical Center for employee separations, were as follows. Continue Reading
New York State’s COVID-19 sick leave law has been in effect since March 18, 2020 (see our prior posts here and here). Since then, several questions have remained largely unanswered for both New York employers and employees as they navigate the eligibility and application requirements of the new law, which offers individual job-protected paid or unpaid sick leave as well as expanded paid family and disability benefits for employees.