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As a further update to our post here, on Thursday, the DOL issued an additional 22 FAQs on FFCRA, addressing required certifications for leave, healthcare coverage during leave, intermittent leave, teleworking, and several other topics. In a major and unexpected twist, DOL takes the position that FFCRA leave is not available if an employer closes a worksite or furloughs employees due to a lack of work or government closure directives. DOL also takes the position that FFCRA leave may not be used to supplement lost pay when an employee’s hours are reduced due to lack of work.

The link to the new FAQs is here.

The FAQs regarding closures, furloughs and reduced hours are pasted below for convenience. Our COVID-19 Rapid Response Team can provide you with a FFCRA-compliant policy and leave certification / designation forms. Please reach out to your Baker McKenzie employment attorney.

 

23.  If my employer closed my worksite before April 1, 2020 (the effective date of the FFCRA), can I still get paid sick leave or expanded family and medical leave?

No. If, prior to the FFCRA’s effective date, your employer sent you home and stops paying you because it does not have work for you to do, 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 is 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. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

It should be noted, however, that if your employer is paying you pursuant to a paid leave policy or State or local requirements, you are not eligible for unemployment insurance.

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. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

25.  If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?

If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to 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 the employer 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. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

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.

27.  If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but tells me that it will reopen at some time in the future, can I receive paid sick leave or expanded family and medical leave?

No, not while your worksite is closed. If your employer closes your worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded family and medical leave. However, 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. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx. If your employer reopens and you resume work, you would then be eligible for paid sick leave or expanded family and medical leave as warranted.

28.  If my employer reduces my scheduled work hours, can I use paid sick leave or expanded family and medical leave for the hours that I am no longer scheduled to work? 

No. If your employer reduces your work hours because it does not have work for you to perform, you may not use paid sick leave or expanded family and medical leave for the hours that you are no longer scheduled to work. This is because you are not prevented from working those hours due to a COVID-19 qualifying reason, even if your reduction in hours was somehow related to COVID-19.

You may, however, take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents you from working your full schedule. If you do, the amount of leave to which you are entitled is computed based on your work schedule before it was reduced (see Question 5).

29.  May I collect unemployment insurance benefits for time in which I receive pay for paid sick leave and/or expanded family and medical leave?

No. If your employer provides you paid sick leave or expanded family and medical leave, you are not eligible for unemployment insurance. However, each State has its own unique set of rules; and DOL recently clarified additional flexibility to the States (UIPL 20-10) to extend partial unemployment benefits to workers whose hours or pay have been reduced. Therefore, individuals should contact their State workforce agency or State unemployment insurance office for specific questions about eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

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Harris County, Fort Bend County, Galveston County, Collin County, Tarrant County, and Dallas County have all issued Stay at Home / Shelter-In-Place Orders.

Harris County Judge Lina Hidalgo issued a “Stay Home, Work Safe” Order taking effect at 11:59 p.m. on March 24, 2020.  The order requires residents to remain inside except for “Essential Activities,” and requires non-essential businesses close their facilities.  “Essential Activities” includes activities related to health and safety, but also allows people to shop for household consumer products and supplies needed to work from home, and to “perform work providing essential products and services at an Essential Business.” In enumerating the Essential Businesses allowed to remain open, the Harris County order incorporates the 16 “Essential Critical Infrastructure” sectors identified by the National Cybersecurity and Infrastructure Agency (CISA) as “Essential Businesses.”

As noted in our previous client alert, the CISA guidance considers a broad range of electricity, petroleum, natural and propane gas, and chemical workers as critical infrastructure.  In effect, the entire supply chain for energy-related industries is deemed essential.  Further, any operations that are “necessary for the manufacturing of materials and products” demanded by the energy or chemical manufacturing supply chains are also exempt from closure.

To keep reading, click here.

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Predictions about the spread of COVID-19 through significant parts of the population and its effects on American life are staggering. The Centers for Disease Control and Prevention (CDC) reports more than 54,000 confirmed cases in the United States. As countries across the world implement new, extraordinary measures in an attempt to contain the coronavirus, which infects clusters of people (including co-workers), employers face rapidly evolving compliance issues.

Employers must provide employees a safe place to work under the Occupational Safety and Health Act’s “General Duty Clause.” This catchall safety provision applies to “recognized hazards.” When OSHA addresses a pandemic, it reminds employers of their general duty to protect employees from airborne infectious diseases. Given the Act’s remedial purpose “is prophylactic in nature,” Whirlpool Corp. v. Marshall, 445 U.S. 1, 12 (1980), developing, maintaining, and implementing workplace plans to reduce worker exposure is crucial to mitigate the risk of citation.

But what about those that are already exposed despite adequate workplace measures? Many individuals are asymptomatic or can carry (and spread) COVID-19 for up to two weeks without illness. Employers should assume—and plan for the unfortunate reality—that most employees will suffer a consequence because of COVID-19.

Recent gubernatorial decisions have forced thousands of “nonessential” businesses to shut down and send employees home, threatening the economy. While other businesses providing “essential services,” such as healthcare providers, grocery stores, and restaurants, remain open, they likewise face myriad challenges. As the coronavirus pandemic escalates, so does uncertainty and risk. Adding insult to injury, litigation tends to increase in times of crisis. The coronavirus has already disrupted the workplace; it will undoubtedly continue to do so, implicating numerous employment laws that could give rise to unprecedented legal claims.

Click here for additional information, including:

  • Claims arising under equal employment opportunity laws
  • Claims for interfering with or denying leave or sick time
  • Potential wage and hour violations stemming from remote work and the economic impact of COVID-19
  • Potential violations of a Collective Bargaining Agreement (CBA)
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The Department of Labor just published its first round of guidance on the FFCRA, including two fact sheets and a FAQ explaining key provisions of the paid sick leave and paid child care requirements:

The DOL also published sample FFCRA posters that federal and private employers are required to post in the workplace, as well as a FAQ on how and where to post them. Notably, emailing the posters to remote workers satisfies the posting requirements.

Importantly, DOL has elected to make the paid leave provisions of the FFCRA effective April 1, 2020, instead of the anticipated April 2 date. The DOL also announced a 30-day suspension on enforcement actions if employers attempt in good faith to comply with the FFCRA.

Continue Reading New Guidance and Required Posters Issued by the DOL for Paid Sick and FMLA Leave under the Families First Coronavirus Response Act (FFCRA)

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Layoffs, reduced schedules, sick leave, and telecommuting—these are just a few of the issues that employers are navigating as they quickly adapt to the effects of the global pandemic. While moving full speed seems to be the only way to keep up with the rapidly-evolving landscape, companies should take a moment to ensure that they do not unintentionally convert their independent contractor relationships into employment relationships.

As a reminder, a degree of separation between companies and contractors must be maintained to preserve the independent contractor relationship. To determine whether a worker is misclassified as a contractor, the IRS and courts in many states review a multitude of factors, including the level of control exercised by a company; courts in other states (including California, as discussed in this blog post require companies to satisfy a stringent, three-part test to prove that the worker is properly classified as a contractor. Under any standard, an accidental misstep during the Coronavirus crisis could have the unintended consequence of converting a contractor into an employee.

For example, to address the myriad employment issues, companies have been distributing company-wide alerts, such as: employee travel letters for the “Critical Infrastructure Workforce” to carry as they travel in the field and commute to/from work; information and notices regarding Families First Coronavirus Response Act (FFCRA); WARN Act notices; unemployment insurance benefit forms; and the like.

Companies should be mindful to distinguish between contractors and employees when sending out these notices—companies should send notices to contractors couched in language reflective of the independent contractor relationship and applicable independent contractor agreements, and other notices should not be distributed to the contractor workforce at all (e.g., WARN Act notices, unemployment forms, etc.).

During times like this, when it seems like each day presents a new employment-related hurdle, companies should take extra care to ensure that they are properly communicating with their independent contractors.

 

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On Friday, March 20, 2020, the Internal Revenue Service (IRS), US Department of Labor (DOL), and US Department of the Treasury published a joint news release (Release) regarding tax credits available to employers who will be required to provide paid sick and family care leave for COVID-19-related purposes under the Families First Coronavirus Response Act (FFCRA).  As explained in detail here, the FFCRA mandates employer-paid sick leave and partially-paid family care leave, offset by tax credits. The FFCRA also includes federal funding and waivers for free COVID-19 testing, food and nutrition assistance programs, and state unemployment insurance programs.

Published only two days after the FFCRA was signed into law, the Release further reflects the unprecedented steps being undertaken by the US government in response to the COVID-19 epidemic. At its core, the Release explains that employers covered by the leave provisions of the FFCRA will receive new, refundable payroll tax credits “designed to immediately and fully reimburse them, dollar-for-dollar, for the cost of providing Coronavirus-related leave to their employees.” It also provides additional details about the small employer exemption to the FFCRA leave requirements and the DOL’s enforcement plans.

To help you prepare, click here to continue reading including a FAQ that summarizes the key provisions of the Release.

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Companies are permitting (or requiring) employees to work remotely right now in response to COVID-19 concerns. This decision, calculated to minimize certain risks, presents new and wide-ranging concerns for the protection of trade secrets. In this “temporary” working remotely environment, employees will have considerable opportunity to access, download, or store sensitive information from company systems and databases. Have you vetted these circumstances or otherwise addressed their use? Think – home printers? Cell phones? Tablets? Personal email accounts? Working in public places such as libraries and coffee shops? Companies may also be inclined to relax otherwise well thought out document management rules or allow for workarounds from the usual security measures in the interest of business continuity. In such an environment, employees may make assumptions that they have wider latitude to email, copy, send, print, or download information, given the circumstances. Compounding these insider risks are a series of unknowns, such as whether your employees’ home networks have security anywhere near on par with in-office network security that could allow outsiders to intrude or access data.

Trade secret litigation has grown exponentially in the United States, in part due to the passage of the Defend Trade Secrets Act (18 U.S.C. § 1836, et seq.) in 2016, and in response to the incredible value embodied in companies’ customer lists, knowhow, processes, formulas, business strategies, salary structures, and numerous other forms of intellectual property. If information is valuable, kept secret, and derives value from its secrecy, then it can be a protectable trade secret — as long as the company puts in place reasonable measures to maintain the secrecy.

Whether your company has a sophisticated trade secret protection plan in place or not, the current work environment will stress policies and procedures. Employees pose the biggest threat to securing a company’s valuable IP, and several remote-working concerns raise long-term policy questions to be addressed over time. But, the action items can’t all wait until a calmer moment. Consider the following immediate steps as your company reacts to recent events.

1. Communicate current obligations and requirements in the remote working environment

If you have a robust work-from-home policy, review it now with a specific focus on maintaining your company’s most valuable secrets. If you do not have such a policy, implement something immediately, even if it is temporary. Set clear expectations on what information the business considers to be confidential or trade secrets and what particular steps employees are required to follow when using or accessing that information. Not only does it make business sense to keep employees on notice of company policies and procedures, but federal case law under the DTSA has made clear that employees can only be held to trade secret obligations where they are specific and clear, such that employees are “on notice” of the trade secrets. Continue Reading Keep Trade Secret Protections Top Of Mind While You Deploy Remote Working

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ICE Releases Guidance Relaxing I-9 Requirements For Certain Employers

The US Department of Homeland Security (DHS) has issued guidance that provides flexibility for certain employers to comply with Form I-9 requirements due to COVID-19.

Which employers does the new guidance apply to?

The relaxed requirements apply only to employers and workplaces operating remotely due to COVID-19. If there are employees physically present at a work locations, no exceptions will apply. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate on a case-by-case basis.

Continue Reading UPDATE: Onboarding New Employees During the COVID-19 Pandemic ICE Releases Guidance Relaxing I-9 Requirements For Certain Employers

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Effective Saturday March 21 at 5:00 PM until the end of April 7, 2020, all Illinois residents are subject to a stay at home order from the Governor of Illinois. Governor Pritzker announced these measures at a 3:00 press conference today, March 20, 2020, at which he stated “I fully recognize I am choosing between saving people’s lives and saving people’s livelihoods.” This order requires all individuals to shelter in place in their residences, to practice social distancing and for all business operations which are not “Essential Businesses and Operations” to cease all activities within the state other than “Minimum Basic Operations”. Working from home is exempt from the order. Except for certain exceptions, all public and private gatherings of any number of people occurring outside of a single household are prohibited and all places of public amusement are closed. It is permitted to leave the home for health and safety, necessary supplies, for outdoor activity, to take care of others and to perform work at Essential Businesses and Operations.

The intent of the order is to ensure the maximum number of people self-isolate in their places of residence to the maximum extent feasible, while enabling essential services to continue, and to slow the spread of Coronavirus (also known as COVID-19) to the maximum extent possible.

What Businesses are Covered by the Orders?

All for-profit, non-profit and educational entities in Illinois are covered. “Essential Business and Operations” – which are permitted to continue – include, stores that sell groceries and medicine; food, beverage and cannabis production and agriculture; professional services including legal, accounting, real estate and insurance services; organizations that provide charitable or social services; media; gas stations and businesses needed for transportation; financial institutions; hardware and supply stores; critical trades (e.g., building and construction tradesmen and tradeswomen); mail, post, shipping, logistics, delivery and pick-up services; educational institutions (for facility distance learning); laundry services; restaurants for consumption off-premises; certain work supply businesses (e.g., those that sell, manufacture or supply products needed for people to work from home and those that sell, manufacture or supply Essential Businesses and Operations with the support or materials necessary to operate): transportation businesses; home care; day care; manufacture, distribution and supply chain for critical products and industries; critical labor union functions; hotels and motels; and funeral services.

Click here to keep reading.

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Effective Friday, March 20, 2020, Governor Newsom imposed a California-wide Shelter-in-Place via Executive Order (“Executive Order”). This Executive Order comes on the heels of numerous shelter-in-place orders issued by individual counties and cities across the state in the past week. The Governor’s Executive Order requires all individuals living in California to stay home or at their place of residence except as needed to maintain the continuity of 16 critical infrastructure sectors. This Executive Order remains in place indefinitely.

The intent of the Executive Order is to preserve the public health and safety, and to ensure the healthcare delivery system is capable of serving all, while maintaining operation of critical infrastructure sectors.  It also seeks to establish consistency across the state regarding measures that mitigate the impact of Coronavirus (also known as COVID-19).

Click here to view additional information including:

  • What Businesses Are Covered By The Executive Order?
  • What Are The Guidelines For Businesses In The Critical Infrastructure Sectors?
  • What If My Business Is In A Critical Infrastructure Sector, But A County Order Does Not List It As An “Essential Business”?
  • What Should My Business Do To Demonstrate it is Exempt from the Shelter-In-Place Requirement?
  • What If My Business Is Not On The List Of Critical Infrastructure Sectors?
  • Is There A Penalty for Non-Compliance?
  • Are Impacted Employees Eligible For Unemployment Insurance?
  • How Do I Get More Information