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Posts Tagged ‘Matthew Mitchell’

PPP Loan Program: Analysis of Treasury Department Interim Final Rule on Affiliation; Impact on Portfolio Companies

April 6, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)By: Matthew L. Mitchell

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:

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 Issues Revised Emergency Paid Sick Leave Guidance; Limits Scope Of Small Business Exemption

March 31, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)By: Matthew L. Mitchell

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.

Equal Opportunity Commission Issues Updated Guidance Related to COVID-19 Preparedness for “Essential Businesses”

March 24, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)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.

Revised EEOC guidelines.

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

March 23, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)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

Revised Guidance Regarding The Order By The Governor Prohibiting Assemblages Of More Than 10 People And On-Premises Consumption Of Food And Beverages

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.

Congress Adopts Emergency Paid Family Medical Leave and Sick Time Standards; Contemplates Payroll Tax Deductions and Cash Payments to Offset Employer Costs

March 19, 2020 Leave a comment

2015-01-05_8-57-41By: Matthew Mitchell

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “Act”), which aggregates several new laws that apply to private-sector employers and employees affected by Coronavirus-related work disruptions.
The Act takes effect no later than 15 days after enactment, and remains in place until December 31, 2020.
Two significant provisions of the Act include: The Emergency Family and Medical Leave Expansion Act (The “EFMLEA”) and The Emergency Paid Sick Leave Act (The “EPSLA”).
Read more about these new laws in our latest Employment Law Alert.

Governor Issues Emergency Orders that Require Most MA Employers to Modify Business Operations

March 16, 2020 Leave a comment

2015-01-05_8-57-41On Sunday, March 15, 2020, Massachusetts Governor Charlie Baker announced emergency orders in response to the Coronavirus outbreak, that directly affect Massachusetts employers.

Specifically, the Governor directed, in material part:

  • A suspension of educational operations at all public and private elementary and secondary schools in the Commonwealth;
  • A prohibition of gatherings of over 25 people, including, but not limited to, community, civic, public, leisure, faith-based events, sporting events with spectators, concerts, conventions, fundraisers, parades, fairs, festivals, and any similar event or activity that brings together 25 or more persons in a single room or single space. (This prohibition expressly prohibits gatherings of more than 25 people in open work spaces, such as conference rooms.)

The Governor’s emergency orders take effect on Tuesday, March 17, 2020, and are scheduled to remain in place through April 5, 2020, unless otherwise ordered.

Read the following Employment Law Alert for more information.

Read the following article on Force Majeure in Light of the Coronavirus Outbreak.

Coronavirus Response Update – March 13, 2020

March 13, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)By: Matthew Mitchell

The Coronavirus outbreak is creating unprecedented challenges for employers. Existing employment law standards and structures do not contemplate our present circumstances, and employers are increasingly faced with novel questions with respect to employee relations.

We are beginning to see some clarity on the subject, however. As government and organizational actors begin to deploy response strategies, best employment practices regarding Coronavirus concerns are emerging.

Matthew Mitchell provides answers to several common questions regarding the Coronavirus in the following COVID-19 Client Alert.

The Morse Employment Law Team is following this topic closely. Please contact us should you have any questions.