Archive
The Post-Quarantine Workplace: Practical Considerations Related to the Re-Call of Employees to the Worksite
As employers continue to navigate unprecedented economic challenges – with possible easing of shelter-in-place and business closure orders in the coming weeks – one thing is clear: A return to normal business operations, in any short-term scenario, is unlikely.
Employers will soon face very difficult decisions concerning the re-opening of worksite locations and the re-calling of employees. To help prepare for this eventuality, Matthew Mitchell has identified common themes and subjects employers may encounter in the Post-Quarantine Workplace including worksite preparation, change management, government relief opportunities and employment law compliance considerations.
Read our full COVID-19 Alert for our Return-to-Work Guide.
Unemployment Options Under the Massachusetts Emergency Regulations
Currently, 26 million Americans have requested unemployment benefits since the outbreak of the coronavirus pandemic. Federally, the CARES Act provides new and expanded emergency options, which are being adopted and implemented by individual states. At the state level, Massachusetts has put into effect Emergency Regulations to assist both employees and employers with unemployment insurance during COVID-19 and to help implement portions of the CARES Act. For Massachusetts employers trying to put their employees in the best position to maintain wage rates, the following options and strategies are available to help:
- Federal Pandemic Unemployment Compensation (FPUC)
- Pandemic Unemployment Assistance (PUA)
- Furloughs and Standby Status
- Short-Term Compensation Programs (or Work Share Programs)
- Other Important Provisions
Amanda Thibodeau explains each of these programs and qualifying criteria in our recent COVID-19 Alert.
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.
DOL Releases New Fact Sheets and FAQs for Compliance with Families First Coronavirus Response Act
The U.S. Department of Labor (DOL) released its first wave of new guidance as part of its initiative to help employers implement and comply with the new Families First Coronavirus Response Act (“the Act”).
The DOL posted a Fact Sheet for Employees, a Fact Sheet for Employers and a Questions and Answers document on a number of compliance aspects of the Act, including how an employer counts the number of their employees to determine coverage; how small businesses can obtain an exemption; how to count hours for part-time employees; and how to calculate the wages employees are entitled to under this law.
The DOL expects to release further guidance on these topics later this week. Additional DOL guidance on COVID-19-related topics, including new workplace posters can be found here.
The Morse Employment Law team is following this, and other matters related to COVID-19 responses, and will continue to report as appropriate.
Massachusetts Employment Law Blog 