Our two-part webinar series, co-hosted by the Association of Corporate Counsel – Chicago Chapter, is designed to ensure that Midwest in-house counsel are up to
The latest wrinkle for employers managing employees in the time of COVID-19 relates to employee travel. Many employers are coming to us asking how to navigate the patchwork of US state and local quarantine restrictions and / or recommendations for persons who travel to hotspots and then have to quarantine when they return home.
Questions abound, including whether employers can just test employees for COVID-19 to avoid a 14-day quarantine period, and whether employers have to pay employees to follow a quarantine order when their employees voluntarily travel to a hotspot location. We provide background and answer those questions below.
Many schools across the US are not welcoming students back for full-time in-person learning in the fall. On August 5, 2020, after Chicago Public Schools announced it would begin the academic year remotely in September, New York City became the last remaining major school system in the country to even try to offer in-person classes this fall. Proposed plans for schools that aren’t fully reopening range from full remote learning to hybrid models, where students are in school only half a day or several days a week coupled with a remote learning component from home. Either way, employers are likely to find themselves inundated with requests from parents of school-age children for continued work from home arrangements or other work-schedule flexibility. In our Q&A below, we have highlighted issues employers may want to keep in mind as employees with school-age children try to navigate a school year with its own “novel” aspects.
1. Are employers legally obligated to provide any sort of leave for employees who have to stay home with their children if schools don’t fully reopen?
It depends. If the employer is a “covered employer” under the federal Families First Coronavirus Response Act (FFCRA), employees may be eligible for paid leave under the FFCRA. The FFCRA was enacted to provide employees with COVID-19 related paid leave. Covered employers under the FFCRA (generally, private sector employers who have fewer than 500 employees at the time the leave request is made) are required to provide eligible employees with partially paid child care leave for certain COVID-19-related reasons, including if the child’s school, place of care or child care provider is closed or unavailable for reasons related to COVID-19.
Does virtual learning count as a “closed or unavailable” school for purposes of the FFCRA? Though the DOL guidance and FFCRA regulations have not spoken directly on this topic, the DOL’s early Q&A guidance on the FFCRA indicates that a school is “closed” for purposes of EPSLA or EFMLEA leave when the “physical location where [the] child received instruction or care is now closed.” The focus on “physical location” signals that if the school building is closed to students and students are required to learn remotely, the school is “closed” for purposes of the FFCRA.
The FFCRA imposes two federal leave obligations on employers – the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family Medical Leave Expansion Act (EFMLEA).
- Under the EPSLA:
- An eligible employee may take up to two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay where the employee is unable to work or telework for reasons including to care for a child whose school, place of care or child care provider is closed or unavailable for reasons related to COVID-19. Pay is capped at $200 per day and $2,000 in the aggregate.
- Under the EFMLEA:
- An eligible employee may take up to twelve weeks of “expanded” FMLA leave when unable to work or telework due to a need for leave to care for a child whose school, place of care or child care provider is closed or unavailable for reasons related to COVID-19.
- The first two weeks of EFMLEA leave are unpaid. An eligible employee may use paid sick leave under the EPSLA or other accrued paid leave under the employer’s leave policies to receive pay for those two weeks.
- An eligible employee may take up to an additional 10 weeks of paid EFMLEA leave at two-thirds the employee’s regular rate of pay, based on the number of hours the employee would be normally scheduled to work those days. Pay is capped at $200 per day and $10,000 in the aggregate.
In addition, state and local leave laws may apply, many of which either provide additional leave or state that providing care for a child whose school is closed or unavailable for COVID-19 reasons is a protected reason for an employee to take leave.
On July 20, 2020, the Wage and Hour Division of the US Department of Labor (DOL) published additional COVID-19 guidance in the form of a Q&A addressing Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and Families First Coronavirus Relief Act (FFCRA) issues arising when employers and employees return to work.
A few days before, on July 17, the DOL published streamlined optional-use forms for employer and employee notification and certification obligations under the FMLA and separately asked the public to comment on the FMLA and its regulations in a Request for Information (RFI). The additional guidance and forms should help employers navigate FMLA leave and employee wage and hour issues during COVID-19. And employers now have the opportunity to share their thoughts on the FMLA and its implementing regulations with the DOL. We provide more insight into the DOL’s recent activity below.
Most U.S. employers have accepted that the COVID-19 pandemic has changed the future of work. This is particularly true on the fundamental level of where employees work. Aside from looking around our own virtual workspaces, how do we know this?
First, since the start of the pandemic, employees have worked from home in unprecedented …
Employers in the US are more than a little fearful of COVID-19 related class and collective action lawsuits coming their way, and with good reason. Since shelter-in-place orders were imposed in March, US employers have faced class action lawsuits for a variety of COVID-19 related reasons, including the alleged failure to implement proper workplace safety measures or provide appropriate paid sick leave. To keep workers safe from contracting the virus at work, many employers have allowed employees to continue to work from home indefinitely, which likely decreases the odds that an employer will be sued in class action litigation for failing to provide appropriate PPE in the workplace. However, managing employees working from home can create other issues worthy of class-action litigation, including reimbursing those employees for work-related expenses.
What can employers do to ensure they meet reimbursement requirements to steer clear of expense reimbursement class action lawsuits in the US? Go through the four considerations, below.
1. Know the rules that apply in your jurisdiction
Several jurisdictions have specific rules regarding employee expense reimbursements, so you’ll need to check your local law. In California, an employer must reimburse an employee for all “necessary expenditures or losses incurred by the employee in direct consequence or discharge of his or her duties.” Cal. Lab. Code § 2802. Similarly, Illinois requires reimbursement of all “necessary expenditures or losses” an employee incurs within the scope of employment that are “directly related to services performed for the employer,” unless the employer has a written reimbursement expense policy and the employee fails to comply with that policy. 820 ILCS 115/9.5. And in the District of Columbia, employers must pay the cost of purchasing and maintaining any tools that the employer requires to perform the employer’s business. D.C. Mun. Reg. tit. 7, § 910.1. If you have operations in several jurisdictions, make sure that you know and follow each applicable jurisdiction’s rules.
In addition, the Fair Labor Standards Act (FLSA) may apply. Though the FLSA does not require employers to reimburse their employees, under the FLSA “kickback” rule, employees cannot be required to directly pay business-related expenses or reimburse their employer for such expenses if doing so would cause the employee’s wage rate to fall below the required minimum wage or overtime compensation thresholds. See 29 C.F.R. § 531.35. Remote workers typically earn well-above the federal minimum wage ($7.25 per hour), so employers don’t need to be as concerned about business expenses causing those employees’ wages to dip below the federal minimum wage. However, employers should be on the lookout for these situations, which require more attention:
- Where employees are subject to overtime for working more than 40 hours in a workweek;
- Where a particular pay threshold (whether under federal or state law) must be met for the employee to meet an exemption from overtime (in which case the employee will become nonexempt and must be paid overtime for any work over 40 hours in a workweek); or
- Where state or local minimum wages are higher (such as Chicago’s $14 per hour or California’s $12 per hour), making it more likely that an employee’s payment of business-related expenses would cause their wages to dip below the minimum wage.
A violation of the FLSA occurs in any workweek in which the cost of the business-related expenses borne by the employee cuts into the minimum or overtime wages required to be paid to the employee. Therefore, employers can more easily run afoul of the FLSA in these scenarios, especially if the business-related expenses paid in any given workweek happen to be hefty.
Are They Right For You?
As the COVID-19 pandemic continues to wreak havoc on the global economy, United States employers are continuing to examine ways to reduce costs while at the same time both limiting the financial impact on employees and preserving their ability to ramp back up when circumstances allow. State short time compensation programs, also known as work share programs, provide one avenue for cost savings that may be appropriate for some employers.
Where available, these programs provide pro-rated unemployment compensation benefits to groups of workers whose hours are reduced by their employer on a temporary basis in lieu of layoffs. In addition, the recently passed Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) provides a federally-funded $600 per week unemployment compensation supplement to those who participate in such programs through July 31, 2020.
This Alert provides additional details about state short time compensation programs and answers frequently asked questions about the pros and cons of participation.
Where are short time compensation programs available?
Currently, the following 27 jurisdictions have short time compensation programs in place: Arizona, Arkansas, California, Connecticut, District of Columbia, Florida, Iowa, Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Texas, Vermont, Washington and Wisconsin. The CARES Act provided federal funding for other states to enact short time compensation programs, so additional states may do so in the near term.
On March 31, SBA Administrator Jovita Carranza and Treasury Secretary Steven T. Mnuchin announced that the SBA and Treasury Department have initiated a “robust” mobilization effort of banks and other lending institutions to provide small businesses with $349 billion in much-needed capital pursuant to the Paycheck Protection Program, established by the Coronavirus Aid, Relief, and…
In part one of this article, we discussed when and how multinational companies can use a noncompetition agreement on their highly skilled employees to protect their confidential information and other intellectual property. In particular, we described five key factors to consider before rolling out noncompete covenants around the world.
In part two, we analyze how…
Join us on January 28, 2020 for our California Employment Compensation Update in Los Angeles.
We’ll clarify the impact of employment and compensation developments in California, the US and abroad that raise opportunities for the visionary companies that seize them.
We will offer a choice between two sessions:
1. Predictions for the Year Ahead in…