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President Issues New Executive Order on Enhanced Unemployment Benefits
On August 8, 2020, President Trump issued four executive orders in response to the COVID-19 pandemic. One of the President’s executive orders (the “EO”) directs the Federal Emergency Management Agency (FEMA) to begin paying additional unemployment benefits from the Department of Homeland Security’s Disaster Relief Fund (DRF) at a rate of $400 per week on top of regular unemployment benefits. The enhanced unemployment benefits will be retroactive to August 1, 2020 and will continue until December 6, 2020 – or until the balance of the DRF drops to $25 billion – whichever happens first. According to the EO, there is currently about $70 billion in the DRF.
The DRF will cover $300 of the $400 weekly enhanced benefit – with states picking up the additional $100 per week from funds allocated to them from the Coronavirus Relief Fund (CRF) (created from the CARES Act).
Like the original benefits provided under the CARES Act, unemployed workers will be eligible for the new $400 per week if they otherwise qualify for regular unemployment compensation, Pandemic Emergency Unemployment Compensation (PEUC) under the CARES Act, Pandemic Unemployment Assistance (PUA) under the CARES Act, Extended Benefits, Short-Time Compensation, or several other discrete programs. However, unlike the previous Federal Pandemic Unemployment Compensation (FPUC) benefits, the EO disqualifies workers receiving less than $100 per week in unemployment benefits. Under the FPUC, workers who received at least $1 in unemployment benefits qualified for the additional $600 per week.
It is unclear when workers may see these enhanced unemployment benefits. While the EO makes clear that workers will be eligible for the enhanced benefits beginning the week ending August 1, 2020 (the FPUC benefits ended July 31, 2020), states will need time to get the new system set up and to receive funding. Once up and running, eligible workers will collect retroactive benefits, but that could be a matter of weeks, or months, in some cases. Like regular unemployment benefits, workers will apply through their individual state’s unemployment office and be subject to that state’s unemployment program requirements, such as any work search criteria.
There is also speculation that the President’s EO may be challenged on constitutional grounds. The EO invokes the President’s powers under the Stafford Disaster Relief and Emergency Assistance Act; however, constitutional scholars debate whether the invoked section can be used to fund unemployment benefits in this manner without the specific authorization of Congress. For now, however, eligible workers should continue to apply for their regular unemployment benefits through their state and comply with any state-specific eligibility requirements to remain qualified for the enhanced benefits.
See our complete COVID-19 Resource Collection.
PPP Loan Program: Analysis of Treasury Department Interim Final Rule on Affiliation; Impact on Portfolio Companies
On April 3, 2020, the United States Treasury Department issued “Interim Final Rules” and a related guideline concerning the Paycheck Protection Program’s “Affiliation Rule.” The Interim Final Rule and guideline may be found here:
- Interim Final Rule on Affiliation (the “Interim Rule”)
- Applicable Affiliation Rule Guideline (the “Guideline”)
The instructions included in the Interim Rule and Guideline significantly limit, by application of the Affiliation Rule, the types of businesses that are eligible to apply for loans under the Paycheck Protection Program. Of particular note: The Interim Rule and Guideline apply the restrictions of the Affiliation Rule to start-up and emerging businesses, likely precluding many such companies from access to PPP loans funds.
The Morse Employment Law team is following this topic closely. Read our latest COVID-19 Alert for more information.
DOL Releases New Guidance for Compliance with CARES Act and FFCRA
The U.S. Department of Labor (DOL) announced new guidance to help states with administration of the new unemployment provisions part of the Families First Coronavirus Response Act (FFCRA). It also updated and added additional guidance for the paid sick leave and expanded family and medical leave implementation under the FFCRA.
The new unemployment guidance provides help to states in implementing the temporary emergency state staffing flexibility provision of the CARES Act. It also provides help to states in determining eligibility requirements for applicants – especially in the area of gig workers and independent contractors, who are not typically eligible for unemployment benefits. The new guidance can be found here.
The guidance added by the DOL for the paid sick leave and expanded family and medical leave implementation includes a webinar to help employers determine eligibility and answer other questions related to benefits and protections under the FFCRA. The DOL also added additional materials to its Questions and Answers and added more workplace posters in additional languages. You may view these new materials here.
The Morse Employment Law team is following this, and other matters related to COVID-19 responses, and will continue to report as appropriate.
DOL Posts Temporary Rule Issuing Regulations on Families First Coronavirus Response Act
On April 1, 2020, the U.S. Department of Labor (DOL) posted a temporary rule issuing regulations on the Families First Coronavirus Response Act (FFCRA). In particular, the new regulations deal with implementation of the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA) portions of the FFCRA. The regulations are temporary and will expire December 31, 2020, and will not affect the Family Medical Leave Act beyond that date.
The new regulations shed light on several important areas of the FFCRA.
Our COVID-19 Alert addresses a few key takeaways on the following topics:
- Self-quarantine
- Effect on FMLA Leave and Paid Time Off Used Concurrently
- Small Business Exemption
- Intermittent Leave
- Notice and Leave Documentation
The new regulations take effect immediately and contain many more details concerning the implementation of the FFCRA. Please see our previous Alert on the FFCRA for additional requirements under the new law, or reach out to our Morse Employment Law Team for help.
SBA Paycheck Protection Program (“PPP”)
By: Joseph E. Hunt
On March 31, 2020, the Department of the Treasury (“Treasury”) issued guidance for the Paycheck Protection Program (“PPP”), one of the hallmarks of the Coronavirus Aid, Relief and Economic Security (“CARES”) Act designed to provide up to $350 billion in short term loans to small businesses affected by the COVID-19 pandemic.
According to information provided by Treasury, while PPP loans can only be made by private lenders who are certified by the Small Business Administration (“SBA”), they are fully guaranteed by the SBA. These PPP loans are made for a two-year period, and provide a 0.5% fixed interest rate with repayments deferred for six months.
An applicant business is eligible to obtain a PPP loan equal to the lesser of (a) $10 million or (b) 250% of its average total monthly payroll costs over a trailing 12-month period, as measured from the loan origination date. Loan amounts will be forgiven as tax free cancellation of indebtedness as long as (i) the loan proceeds are used to cover payroll costs, mortgage interest costs, rent expenses, and utility costs over an eight (8) week period beginning as of the origination date, and (ii) employee and compensation levels are maintained.
Per Treasury, the underwriting standards for eligibility are relaxed, and private lenders making PPP loans will be required to verify that the applicant business was in operation as of February 15, 2020, and that it had employees for whom it paid salaries and payroll taxes.
The application window opens on Friday, April 3, 2020 for small businesses and sole proprietorships and Friday, April 10, 2020 for independent contractors and self-employed individuals. Applications can be made through any SBA-certified private lender.
Additional resources are available on the Treasury’s website.
Morse is following this topic closely. Please feel free to reach out to your Morse contact, or to speak with Joe Hunt, Amanda Thibodeau, or Matt Mitchell directly, should you have any questions.
Read our latest COVID-19 Alert.
MA Governor Extends Non-Essential Business Closings Until May 4, 2020
Massachusetts Governor Charlie Baker extended his previous emergency order to close non-essential businesses and his stay-at-home advisory until May 4. His previous order closed non-essential businesses until April 7.
The new emergency order will take effect at noon on Wednesday, April 1. Governor Baker also extended his order limiting all gatherings to 10 people or less until May 4.
Governor Baker also updated the “COVID-19 Essential Services” list, based on new federal guidance. The new list will also go into effect on April 1 at noon. See the updated list on essential businesses.
The Morse Employment Law team is following the latest developments related to COVID-19 responses, and will continue to report as appropriate.
DOL Issues Revised Emergency Paid Sick Leave Guidance; Limits Scope Of Small Business Exemption
As previously reported in an earlier Employment Law Alert, the emergency paid sick leave provisions of the Federal Families First Coronavirus Act (the “FFCA”) take effect April 1, 2020.
In anticipation of that effective date, the federal Department of Labor (the “DOL”) has published a revised and expanded “Questions and Answers” Guidance (the “Guidance”) concerning the FFCA.
This guidance addresses 59 distinct subject matters that relate to the complex application of the FFCA. Of particular note: The Guidance defines the scope of the FFCA exemption that applies to employers with fewer than 50 employees.
The text of FFCA implies a general exemption, from the paid sick leave requirements of the FFCA, for employers with fewer than 50 employees, that are experiencing economic hardships as a result of the coronavirus outbreak. Through the Guidance, the DOL adopts a narrowed interpretation of this small business exemption:
“A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:
- employer employs fewer than 50 employees;
- leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
- an authorized officer of the business has determined [certain financial exigencies exist.]”
Guidance, Q&A 59.
As such, unlike previous reports, small businesses are not broadly exempt from FFCA emergency paid leave requirements, and must provide employees with emergency paid leave benefits absent the limited exceptions described above. For example, under the Guidance, a small business is required to provide 80 hours of emergency paid sick leave to an employee that is absent from work as a result of a COVID-19 related illness.
In addition to the Guidance, in the coming days, the Internal Revenue Services is expected to publish instructions related to tax credits available to employers that incur expenses related to FFCA emergency leaves.
The rules and guidelines that relate to the FFCA, and to the other federal and state coronavirus relief programs, are moving targets. The Morse Employment Law team is following these, and other matters related to COVID-19 responses, and will continue to report as appropriate.
Read our latest COVID-19 Alert.
IRS, DOL, and Treasury Issue Plan on Implementation of Payroll Tax Credit, Paid Leave and Other Employment-Related Provisions of the Families First Coronavirus Response Act
The Internal Revenue Service (IRS), U.S. Department of Labor (DOL), and U.S. Treasury Department issued a joint statement highlighting the employment-related provisions of the Families First Coronavirus Response Act (“the Act”), which was signed into law by President Trump on March 18, 2020 (see our previous alert on this subject here). The three departments offered a preview for small and mid-size businesses related to the implementation of these various provisions. A summary of their highlights is below.
- DOL plans to release regulations relating to the Act by April. While employers are not required to comply with the Act until April 2, the DOL and IRS made clear that employers, unless exempted, may begin to provide paid leave under the Act and take advantage of the available tax credits immediately. The anticipated regulations will provide further guidance on the sick and child care leave requirements of the Act.
- DOL plans to release emergency guidance related to small business exemptions related to leave. The Act provides an exemption for businesses with less than 50 employees from leave requirements related to school and daycare closings where the leave requirements would threaten the viability of the business. The DOL plans to issue guidance with “simple and clear criteria” on the qualifications related to this exemption.
- DOL will be issuing a temporary non-enforcement policy to allow employers to come into compliance. Under the temporary policy, the DOL will not bring enforcement actions against employers for violations of the Act, but instead will work with employers to assist in compliance with the Act, provided the employer has acted reasonably and in good faith.
- The IRS will be releasing guidance later this week about how employers can obtain the tax credits related to providing sick or child care leave. In short, employers will obtain the credit by withholding the amount of money equal to the cost of leave provided from their payroll taxes, rather than depositing with the IRS. If the amount withheld is not enough to cover the paid leave provided, employers will be able to file a request for payment on an accelerated basis, to be processed in two weeks or less. The IRS will release further details on the procedure in their anticipated guidance.
The Morse Employment Law team is following this, and other matters related to COVID-19 responses, and will continue to report as appropriate.
Equal Opportunity Commission Issues Updated Guidance Related to COVID-19 Preparedness for “Essential Businesses”
The federal Equal Employment Opportunity Commission (the “EEOC”) has issued revised guidelines that define Americans with Disabilities Act (“ADA”) compliance standards for employers operating under current COVID-19 pandemic conditions.
In general, the ADA broadly restricts business decisions that consider employee health or medical conditions. Through the guidelines, the EEOC has temporarily suspended certain ADA restrictions in an effort to permit “Essential Businesses” – businesses that are exempted from various shelter-in-place and business restrictions order now in effect in several regions – to adopt practical strategies to maintain safe business operations.
Several of the key concepts are below:
- With respect to employee inquiries regarding COVID-19 symptoms: “An employer may send home an employee with COVID-19 or symptoms associated with it. Employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19.”
- With respect to workplace infection control strategies: “Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees’ body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements. Similarly, with respect to the current COVID-19 pandemic, employers may follow the advice of the CDC and state/local public health authorities regarding information needed to permit an employee’s return to the workplace after visiting a specified location, whether for business or personal reasons.”
- With respect to reasonable accommodation requests by employees that are unrelated to COVID-19: “The rapid spread of COVID-19 has disrupted normal work routines and may have resulted in unexpected or increased requests for reasonable accommodation. Although employers and employees should address these requests as soon as possible, the extraordinary circumstances of the COVID-19 pandemic may result in delay in discussing requests and in providing accommodation where warranted. Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.”
- With respect to hiring practices during COVID-19 pandemic: “An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule allowing post-offer (but not pre-offer) medical inquiries and exams applies to all applicants, whether or not the applicant has a disability.”
The Morse Employment Law team is following this, and other matters related to COVID-19 responses, and will continue to report as appropriate.
Massachusetts Governor Orders “Non-Essential” Businesses To Close Physical Workplaces By Tuesday, March 24
On March 23, 2020, Massachusetts Governor Charlie Baker issued an Emergency Order requiring all businesses and organizations that do not provide “COVID-19 Essential Services” to close their physical workplaces and facilities to workers, customers and the public.
The Emergency Order goes into effect on Tuesday, March 24th at noon, and remains in effect until Tuesday, April 7th, or until otherwise ordered.
Please refer to the list of “COVID-19 Essential Services” that are exempted from the Emergency Order.
Businesses that are designated as “Essential” are directed to follow social distancing protocols for workers in accordance with guidance from the Massachusetts Department of Public Health, as aggregated at the following sites:
COVID-19 Prevention and Treatment
COVID-19 Guidance and Directives
Businesses and organizations not on the list of essential services are encouraged to continue operations through remote means that do not require workers, customers, or the public to enter or appear at workplace premises impacted by the Emergency Order.
Information concerning this Emergency Order is developing.
The Morse Employment Law team is following this, and other matters related to COVID-19 responses, and will continue to report as appropriate.
Resources for Employers Managing the Impact of COVID-19
COVID-19 is causing significant disruption at every level of business – and responses are varying and evolving rapidly. Morse is monitoring the situation closely on behalf of our clients. To help keep you as up to date as possible, below we provide some helpful federal and state resources to help you and your business keep up on the latest as well.
- Equal Employment Opportunity Commission (EEOC)
- The U.S. Department of Labor (DOL)
- Massachusetts Attorney General’s Office
- Massachusetts Department of Unemployment Assistance (DUA)
See our website for additional information regarding these resources.
Congress Adopts Emergency Paid Family Medical Leave and Sick Time Standards; Contemplates Payroll Tax Deductions and Cash Payments to Offset Employer Costs
By: Matthew Mitchell
Coronavirus Response Update – March 12, 2020
In recent days, we have seen increased incidents of COVID-19 infections in Massachusetts and around the United States, and extraordinary actions from federal, state, and organizational actors in response to the outbreak – including the announcement by the White House last evening of a European travel ban, and the proposed suspension of all Social Security payroll taxes.
We are fielding many inquiries from concerned and confused private-sector clients concerning appropriate response strategies.
As outlined in our prior Alert on the subject, it should be emphasized that, at this time, there are no legal directives, related to Coronavirus, that apply generally to restrict the business operations of private-sector employers. Rather, there are government-issued guidelines and recommendations that place the burden on employers to adopt their own common-sense measures, within existing legal rules. For example:
- The Federal Department of Labor and OSHA have issued guidance on how “Preparing Workplaces for COVID-19” – https://www.osha.gov/Publications/OSHA3990.pdf
- The EEOC has issued guidance on employee protections under the ADA in the event of a pandemic – https://www.eeoc.gov/facts/pandemic_flu.html
That said, it has been reported that Federal and state governments are now considering emergency orders that would regulate and limit operations of private-sector employers, including directives that would require temporary closures of some workplaces. As such, we believe it is prudent that employers begin now to plan for such contingencies.
The Morse Employment Law Team is following this topic closely. Please contact us should you have any questions.
Coronavirus Response Update – March 11, 2020
By: Matthew Mitchell
In response to increased incidents of COVID-19 infections in the Commonwealth, on Tuesday, March 10, 2020, Governor Charlie Baker declared a State of Emergency in Massachusetts. The State of Emergency declaration is, in essence, an activation of the Governor’s emergency powers – meaning that the Governor may now order certain directives and allocate certain resources, to respond to the Coronavirus outbreak, outside of regular legislative processes.
The Governor has issued a directive that applies to the Commonwealth’s Executive Branch. Matthew Mitchell explains what this directive to public-sector employers entails in the following client alert.
The Morse Employment Law Team is following this topic closely. Please contact us should you have any questions.
3/6/20 – Client Alert: Recommended Employer Response to the Coronavirus
By: Amanda Thibodeau
The spread of coronavirus (COVID-19), and its effects on business markets, travel, and public health, are dominating the news cycle. As this public health emergency continues to develop, it is critical that employers adopt measured policies that promote safe working environments, and that employers identify and execute on strategies to limit business interruptions.
The Centers for Disease Control and Prevention (“CDC”) has released an interim guidance for private sector employers that relates to the management of coronavirus concerns. The core themes of the guidance include: promoting use of sick time, cleaning work spaces and encouraging good hygiene, restricting travel, etc.
Read Amanda Thibodeau’s client alert for more information and further guidance on the management of coronavirus concerns.
Round Up of Noncompete Reform Coming to New England
Noncompete reform is taking over the country as more and more states – including four in New England – are making the decision to enact new laws restricting the use of noncompetition agreements by employers. Maine, New Hampshire, and Rhode Island all recently passed legislation that is expected to take effect soon, and a similar bill is pending in Vermont as well. Dates of note include:
- In June 2019, Maine’s governor signed into law LD 733: An Act To Promote Keeping Workers in Maine. This new law took effect September 18, 2019.
- On July 11, 2019, New Hampshire’s governor signed S.B. 197 into law, which amends New Hampshire’s previous statute governing the use of noncompetition agreements. The amended law took effect on September 8, 2019.
- On July 15, 2019, Rhode Island’s governor signed RI H6019 – the Rhode Island Noncompetition Agreement Act, which will go into effect on January 1, 2020.
- In January 2019, H.1 was introduced in the Vermont legislature. The bill was referred to the Vermont House Committee on Commerce and Economic Development, where it remains as of today.
Noncompete reform is gaining popularity, with more states likely to join in soon. Similar legislation has been proposed on the federal level as well, although the current federal bill, the Federal Freedom to Compete Act, has not gained much support yet and is currently sitting in the Senate Health, Education, Labor, and Pensions Committee.
Our Employment Law Alert explains the full extent of the bills and how they may affect you.
Important Reminder: Changes to MA Non-Competition Laws Starting October 1
By now, many employers are aware that Massachusetts law governing non-competition agreements is changing at the end of this month. A non-competition covenant or agreement is a provision in either an employment agreement, offer letter or separate agreement where an employer provides to an employee or independent contractor payment or some other consideration (for example a stock option or bonus). The employee or independent contractor in turn agrees not to compete for a period of time, customarily one year, after leaving the employment relationship. To date, whether a non-competition agreement is enforceable has been largely a matter of judicial discretion and we invariably looked to case law for guidance.
Now, after a decade plus of the Legislature considering the topic, we have a new Massachusetts law effective October 1, 2018, Mass. Gen. L. c. 149, §24L, setting forth a number of rules governing non-competition covenants. Read about the Act and what your company needs to do now in our Employment Law Alert.
Changes to Massachusetts Equal Pay Law Coming in July 2018
Employment attorney Scott Connolly discusses the changes to the Massachusetts Equal Pay Act in his new article, Changes to the Massachusetts Equal Pay Law Coming in July 2018. In an effort to remedy perceived pay inequities based on gender, the Massachusetts legislature recently passed An Act to Establish Pay Equity, which amended the Massachusetts Equal Pay Act (“MEPA”). MEPA prohibits gender discrimination in the payment of “wages.” The changes to MEPA will take effect on July 1, 2018.
For more information, visit our Good Company blog, and read the full article on our website. Please contact Scott Connolly with questions regarding the changes to the MA Equal Pay Act.
Federal Judge Temporarily Blocks New Overtime Rule From Taking Effect On December 1
By: Scott J. Connolly and Sandra E. Kahn
On November 22, a federal judge in Texas issued a preliminary order that temporarily blocks the U.S. Department of Labor (DOL) from implementing changes to the salary basis for white collar overtime exemptions. The new salary rule, which was to become effective on December 1, 2016 would have required employers to increase exempt employees’ minimum salary from $23,660 to $47,476. The preliminary court order blocking the rule appears to apply to all public and private employers nationwide.
Find out how the judge’s order will affect the new salary rule, which was to become effective on December 1. Read this month’s Employment Law Alert.
Are You Ready to Reclassify? New Overtime Regulations Go Into Effect on December 1, 2016
By: Sandra E. Kahn
On December 1, 2016, any employees who earn less than $47,476 annually will be entitled to overtime and must be treated as non-exempt, as per the U.S. Department of Labor’s final rule (“Final Rule”).
Don’t wait any longer to address this critical change in the law.
Find out how the Final Rule will affect your current employee classifications and pay practices, and the consequences of not complying with the law.
Read this month’s Employment Law Alert.
Massachusetts Employment Law Blog 