Navigating Covid-19 – Understanding New Regulations and Best Practices

Legal

Thursday, April 9th, 2020; 12:45pm-1:45pm

Navigating Covid-19 – Understanding New Regulations and Best Practices

Panelists: Jeffrey Schlossberg / Pamela Lacy

Webinar Summary –

This webinar provided a summation of recently passed federal legislation (the FFCRA and CARES Act) that affect lending facilities to businesses, as well as newly formed Human Resources implications for franchise businesses. The panelist discussed the ways that these new laws affect businesses, with a particular focus on family medical leave and paid sick leave provisions, and their eligibility requirements. Additionally, the panelists discussed best practices for dealing with the public health implications of Covid-19 in the workplace.

Key Bullets –

  • FFCRA and CARES Act are the primary pieces of legislation that affect your business
  • FFCRA places new requirements on family medical leave and paid sick leave; provides a refundable tax credit for the amount that is paid out by a business to an employee
  • CARES Act provides 100% federally guaranteed loans to small businesses
  • Use this time as an opportunity to create or refine your business continuity plan (BCP) and have plans in place for the next disruption to your business operations

Full Bullets –

  • New Legislation and Your Business
    • Federal law – FFCRA, CARES
    • FFCRA – dedicates tens of billions of dollars for paid sick and family leave, unemployment insurance, free testing
    • CARES – federal stimulus program designed to provide quick access to SBA loans for companies with 500 employees or fewer to assist with payroll and operating costs during short term business disruption
    • SBA EIDL – provides low interest federal disaster loans for working capital to be provided to small businesses suffering substantial economic injury
  • FFCRA 
    • Emergency Family and Medical Leave Expansion Act (FMLA+)
      • Provides refundable tax credit for amount that is paid out
      • Applies to businesses with fewer than 500 employees
      • Eligible employees must have been on payroll for 30 days immediately preceding qualified leave
      • In order to be eligible for leave, employee must meet qualifying conditions
        • Ineligible if working from home; ineligible if furloughed/laid off
      • Eligible employees who qualify for EFMLA leave would be paid by their employer after the first 10 days of leave at rate of not less than 2/3 of their current rate of pay for the number of hours the employee would otherwise be scheduled to work (up to a max of $200 per day)
      • Employees taking leave under EFMLA must be permitted to elect to use any available paid time off including vacation/personal time/medical/sick leave – employers may also mandate that they do so
    • Emergency Paid Sick Leave Act
      • In addition to any leave employee is entitled to
      • Employees not required to use it
      • Exemptions apply to healthcare workers
      • Employees may be eligible for both FMLA+ and EPSL
  • CARES 
    • Provides 100% federally guaranteed loans to small businesses
    • Loans forgiven if borrowers maintain their payrolls during this crisis and/or restore their payrolls afterward
    • 2.5x payroll up to $10 million cap
    • $600 bump to unemployment insurance payment
  • Managing the “New Normal”
    • What to do if an employee is showing signs or symptoms of COVID-19?
      • Remain calm, follow existing policies and procedures
      • Be aware of potentially unlawful conduct, including: discriminating against employees based upon certain national origin
      • Taking an employees temperature unless situation meets CDC/EEOC criteria
      • Requesting medical or disability information unrelated to COVID-19
      • If an employee is symptomatic tests positive, you may require them to work from home (14 days recommended)
      • If employee tests positive, they may use paid or unpaid leave if unable to work, depending on state/federal law
      • A doctor’s note may be requested from an employee who has recovered from COVID-19 when they are ready to return to work
      • Never name or disclose medical status or diagnosis – this must remain confidential
    • Laws to consider
      • FFCRA
      • CARES
      • ADA
      • State mandated laws (paid/unpaid)
      • Policies that your business might have
        • Short term disability policy
        • Personal leaves of absence
        • Accrued sick leave, vacation, PTO
        • Unpaid time off
    • Apply for additional avenues for financial help à SBA’s EIDL; PPP Loans under CARES Act; Contact Small Business Loan Center; Bank or Credit Union
    • How to maintain efficiencies in a virtual workplace?
      • Hardware investments
      • Technology to collaborate and connect; IT strategy may need to evolve to accommodate
      • Cloud based systems and collaboration tools
      • Outlining how supervisors can stay visible without micromanaging
      • Promote culture and information sharing
      • Consider remote employee engagement and teambuilding activities – activities around health and wellness, for instance
    • If you temporarily close, do you have to pay employees?
      • Under FLSA, workers are generally not entitled to wages if they do not work during a week, however
        • Hourly non-exempt workers must be paid for any hours worked during a work week, including overtime
        • Exempt employees must be paid their full weekly salary if they conduct any work at all during a work week
      • Pay attention to fluctuating work week requirements, employment agreements, company policy obligations, employee morale
      • Always consult federal and state wage and hour laws to ensure compliance
  • Preparing for What’s Next
    • Consider developing a business continuity plan (BCP):
      • Assess risk
      • Helps businesses continue operations in the event of a disaster or emergency
    • Ready.gov website includes valuable information for developing a BCP
    • Stay on top of new and pending regulations:
      • CDC
      • WHO
      • DOL
      • SBA
      • EEOC
      • OSHA
      • Paychex with resource center
  • Questions

Can you discipline an employee for refusing to come to work?

  • Depends on why they are not coming to work. If an unfounded fear due to coronavirus then there could be cause for discipline; BUT if a medical condition, safety (OSHA), then they might be eligible for paid sick leave

Intermittent leave – this can occur only with employer agreement

Precautions for older works? – You cannot force older workers to go home, because that is age discrimination. Work with these employees as best as possible.

Document the authority that made the government order

Does an employer have to post the DOL FFCRA poster if they are going to apply for the SBA CARES Act loans?

  • Best practice would be to post the poster. Whether you’re exempt is a self-determination that the employer makes based on its own criteria