Counting employees under FFCRA and the CARES Act is not necessarily as easy as 1-2-3

The Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), both enacted last week, provide significant new federal benefits to small businesses and their employees. Critically, both statutes target smaller employers. To that end, they each contain provisions that are only applicable to employers with fewer than 500 employees. However, each statute counts employees differently. This distinction in counting methods between the statutes presents a dangerous compliance trap for the unwary.

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Los Angeles implements additional paid sick leave for employers with 500 or more employees nationwide

On March 27, 2020, the Los Angeles City Council approved a new paid sick leave ordinance (L.A. Ordinance), to remain in effect until December 31, 2020, which supplements federal bill H.R. 6201, known as the Family First Coronavirus Response Act (FFCRA). The FFCRA provides for paid sick leave and paid family leave entitlements to companies with fewer than 500 employees.

Existing Los Angeles City paid sick leave laws already surpassed California state law mandates by providing twice the minimum allotment under state law. Under the existing Los Angeles City paid sick leave ordinance, employers were already required to provide employees with at least 48 hours (six days) of paid sick leave or one hour for every 30 hours worked.

The L.A. Ordinance now seeks to “bridge the gap” in the FFCRA, requiring employers in Los Angeles with 500 or more employees nationally to provide two weeks of additional paid sick leave to their employees who perform any work within the geographic boundaries of the city of Los Angeles. Employees who have been employed with the same employer from February 3, 2020, through March 4, 2020, are entitled to supplemental paid sick leave as follows. Continue Reading

Virginia update: Governor issues temporary stay-at-home order and other measures to address COVID-19

On March 30, 2020, the governor issued Executive Order 55 requiring all individuals in Virginia to stay in their place of residence, with certain limited exceptions, until June 10, 2020. Specifically, the order permits individuals to leave their homes for the following purposes:

  • Obtaining food, beverages, goods, or services as permitted in Executive Order 53;
  • Seeking medical attention, essential social services, governmental services, assistance from law enforcement, or emergency services;
  • Taking care of other individuals, animals, or visiting the home of a family member;
  • Traveling required by court order or to facilitate child custody, visitation, or child care;
  • Engaging in outdoor activity, including exercise, provided individuals comply with social distancing requirements;
  • Traveling to and from one’s residence, place of worship, or work;
  • Traveling to and from an educational institution;
  • Volunteering with organizations that provide charitable or social services; and
  • Leaving one’s residence due to a reasonable fear for health or safety, at the direction of law enforcement, or at the direction of another government agency.

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Maryland residents ordered to “stay at home” effective 8 p.m. EST March 30 to prevent the spread of COVID-19

On March 30, 2020, Governor Larry Hogan ordered Maryland residents to “stay at home” as part of Maryland’s ongoing response to COVID-19. The full text of the stay-at-home order can be found here. The order becomes effective March 30, 2020, at 8 p.m. EST and remains in effect until further notice. Governor Hogan announced that the order is in response to the people of Maryland ignoring his prior orders and directives for the past three weeks, endangering themselves and others. “We are no longer asking or suggesting that Maryland residents stay home – we are directing them to do so,” Hogan stated. The March 30, 2020, order amends and restates a prior March 23, 2020, order prohibiting large gatherings and events, and closing senior centers and all nonessential businesses and other establishments. Guidance on the March 23, 2020, order can be found here.

The order requires all persons living in the state of Maryland to stay in their homes or places of residences, except to participate in essential activities, as defined below, or to conduct essential business. Continue Reading

Coronavirus Job Retention Scheme in the UK (updated position as at 27 March 2020)

On 20 March 2020, the chancellor, Rishi Sunak, announced the Coronavirus Job Retention Scheme (the Scheme) as part of the UK government’s measures to help support businesses through the current COVID-19 pandemic. Brief guidance followed after the announcement, with more detailed guidance released on the evening of 26 March 2020. There is a lot we still do not know, but here is the updated position.

 About the Scheme

  1. What is the Coronavirus Job Retention Scheme? It is a temporary scheme announced by the UK government on 20 March 2020 as part of its package of measures to help support businesses through the current COVID-19 pandemic. The aim of the scheme is to protect jobs and avoid redundancies in organisations whose operations have been severely affected.
  2. What does the Scheme do? The Scheme allows an employer to designate certain individuals who are paid wages via the Pay As You Earn (PAYE) system as “furloughed”, keeping them on payroll as an alternative to terminating their employment. The employer can then seek reimbursement of some of their labour costs from the government (see #2 under “Payments under the Scheme”).
  3. How is the Scheme accessed? Reimbursement is via an HMRC portal. In guidance released last week, the suggestion was that employers must notify HMRC which individuals have furloughed status, along with details of their earnings, although the updated guidance suggests a more general approach to claiming under the Scheme (see #1 under “Payments under the Scheme”). We expect to understand more about the process once the portal is launched.
  4. When does the Scheme start? It will be back-dated to start from 1 March 2020 and will run for an initial period of three months, but may be extended. Employers can use the Scheme at any time while it is open. As HMRC is having to build its IT infrastructure from scratch to administer the Scheme, there may be a delay in funds being available. It is expected to be operational by the end of April.
  5. Is the Scheme compulsory? It does not appear to be a compulsory scheme; employers are not obliged to make use of the Scheme, and workers will need to consent to be furloughed if it means a change to their terms and conditions (see #2 under “About furloughs” below)

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COVID-19 response: Changes to annual leave carry-over

Whilst the current COVID-19 pandemic has seen many businesses and industries suffer a significant downturn in work, for others the situation is reversed. Against this background, the UK government has announced further emergency legislation to relax the rules around the taking of annual leave.

Under normal principles in the Working Time Regulations 1998 (the WTR), annual leave entitlement must be taken in the holiday year to which it relates, with carry-over permitted in only very limited circumstances. However, with so many employees working to support the nation in the fight against the virus, the Working Time (Coronavirus) (Amendment) Regulations 2020 have been passed to amend the WTR.

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“Ask the EEOC” whether COVID-19 is a disability: Its answer may surprise you

On March 27, 2020, the Equal Employment Opportunity Commission (EEOC) posted a pre-recorded webinar called “Ask the EEOC” on its website. The purpose of the webinar was to answer COVID-19 workplace questions arising under the federal employment discrimination laws the EEOC enforces.  Prior to recording the webinar, and in an effort to ensure that the information provided was relevant to common COVID-19 workplace concerns, the EEOC welcomed public submission of questions. The EEOC reported that “almost 500” questions were submitted. Reed Smith submitted 21 questions, all of which had subparts, designed to gain insight on practical questions likely to be of interest to our employer client base. In the 42-minute webinar, 22 questions were answered by three EEOC representatives: Carol Miaskoff, Associate Legal Counsel of EEOC; Sharon Rennert, Senior Attorney Advisor for ADA and GINA; and Jeanne Goldberg, Acting Assistant Legal Counsel for ADA and GINA.

For the most part, the ground covered during the webinar is familiar to compliance-minded employers generally aware of their EEO obligations. A few questions posed and answered by the EEOC generated useful practical guidance. But one simply worded and powerful question – Is COVID-19 a disability under the ADA? – prompted a surprising “that is unclear at this time” answer from the EEOC.

For purposes of this summary, we selected the five questions posed and answered by the EEOC that we believe are of most interest to employers. Those five are Questions 2, 4, 8, 16, and 21. For each of the five, we provide below the question as posed by the EEOC, a summary of its answer during the webinar, and our commentary.

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Employers should be ready to comply with Dallas’ paid sick leave ordinance during the COVID-19 pandemic

As of March 28, 2020, there are over 103,000 reported cases of COVID-19 in the United States. In Dallas County, there are 439 confirmed cases—an increase of 72 cases from the prior day—and the number of cases is expected to rise. Given the current environment, employers should be cognizant of Dallas’ Earned Paid Sick Time Ordinance (the “Ordinance”), which takes effect on April 1, 2020. While there has been significant question as whether the Ordinance violates the Texas Constitution, the City of Dallas recently has suggested it intends to enforce the statute after the effective date of April 1, 2020.

The Ordinance originally took effect on August 1, 2019 (for employers with 6 or more employees) and mirrors the paid sick leave ordinances passed by Austin on February 15, 2018 and San Antonio on October 3, 2019. The Austin ordinance is currently enjoined and is before the Texas Supreme Court. See City of Austin, Texas, et al. v. Tex. Ass’n of Bus., et al., No. 19-0025 (Tex. filed Jan. 10, 2019). The San Antonio ordinance is also enjoined, and the Dallas ordinance, while not enjoined, is the subject of a lawsuit pending in the Eastern District of Texas. See ESI/Emp. Sols., LP, et al. v. City of Dallas, No. 4:19-CV-00570-ALM (E.D. Tex. filed July 30, 2019). Continue Reading

CARES Act enacted just in time to give the airline industry much needed lift

The COVID-19 pandemic has drastically reduced both domestic and international air travel. As of March 23, 2020, the Transportation Security Agency (“TSA”) screened just 13% of the number of passengers it screened on March 23, 2019. This sharp decline in air travel has devastated the U.S. airline industry, which employs approximately 750,000 workers.

On Friday, March 27, 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) that provides an estimated $2 trillion in economic aid, including financial relief for the airline industry. President Trump signed the bill into law the same day. The CARES Act will not only help air carriers avoid near term involuntary furloughs and bankruptcies, but it will also reshape the airline industry through the various restrictions imposed in exchange for economic aid.

In total, the CARES Act provides $50 billion in economic aid to passenger air carriers that is split into two buckets – grants and loans. Any loans or grants made to air carriers under the Act will be publicly disclosed on the Treasury Department’s website and reported to Congress.

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DOL issues updated FFCRA notice poster

Today the Department of Labor (DOL) updated the required poster that employers subject to the Families First Coronavirus Response Act (those with fewer than 500 employees) must place on their premises to satisfy their employees of the rights requirement under the Act. The update corrects the 10 weeks of paid sick leave under the Family and Medical Leave Act expansion cap amount to $10,000.

Since a vast majority of employees are now working remotely, the DOL has advised that employers may satisfy the standard notice requirement of hanging the poster in a conspicuous place on the employer’s premises (i.e., a kitchen, breakroom or other accessible area) by emailing, or directly mailing, the notice to employees, or by posting the notice on the employer’s internal or external website. Employers that are not fully remote must also post the notice. Similarly, employers who are currently all remote must remember to post the notice once in-office operations resume.  Continue Reading

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