Workforce Bulletin

On March 30, 2020, New Jersey Governor Phil Murphy and Superintendent of the State Police Colonel Patrick Callahan (who also acts as the State Director of Emergency Management) issued Administrative Order 2020-6  providing additional guidance regarding how certain businesses may operate under Gov. Murphy’s Executive Order 107 (which we wrote about here).  The Administrative Order clarifies and directs that:

• Individual appointments to view real estate with realtors by individuals or families shall be considered essential retail business, but that open houses are still ...

In a matter of weeks, COVID-19 has changed the workplace.  Travel restrictions, shelter-in-place orders, and mandatory closures have meant that it is far from business as usual for nearly all employers.  The unprecedented events of the last few weeks have forced many employers, facing major business disruptions or closures, to make tough decisions about hiring, layoffs, furloughs, and compensation.

Some of these employment decisions may implicate written employment contracts and collective bargaining agreements that contain “force majeure” clauses that excuse ...

A post on the Health Law Advisor blog will be of interest to many of our readers: “Coronavirus and Cash Shortfalls – What Can You Do to Mitigate the Effects of Coronavirus on Your Organization’s Financial Health?,” by attorney David E. Weiss of Epstein Becker Green.

Following is an excerpt:

The coronavirus is having a direct effect – financial and otherwise – on nearly every business.  While the long-term effects of the global pandemic will be significant and far-reaching, the short-term financial consequences to businesses, due to expected cash shortfalls, could ...

On March 13, 2020, Governor Greg Abbott declared a State of Disaster in Texas due to COVID-19. Subsequently, on March 19. 2020, Governor Abbott issued a Public Health Disaster Declaration, and an Executive Order, which, among other things, prohibited congregating in groups consisting of more than ten people, and closed all Texas restaurant dining rooms [1] bars, gyms and schools, effective March 20, 2020.  Governor Abbott has refrained from issuing a statewide shelter-in-place order, and has instead left the decision up to city and county leaders.  In the days that followed, and ...

New York State has issued guidance in the form of Frequently Asked Questions (“FAQs”) regarding the State’s new COVID-19 Leave Law (the “Law”). As we have reported, the Law requires New York employers to provide certain employees who are under a COVID-19-related quarantine or isolation order with either paid or unpaid sick leave, depending on the employer’s size and net income. The FAQs provide answers to more than 30 questions regarding the Law’s mandates on benefits, eligibility, the application process, disputes, and the complaint process.

For example, the FAQs ...

In addition to its recent, exigent responsibility of preparing guidance on the protections and relief offered by the Families First Coronavirus Response Act, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) has issued three new opinion letters addressing the excludability of certain types of payments from the regular rate of pay under the Fair Labor Standards Act (“FLSA”).  While these opinion letters do not tread new ground, they are useful reminders of important regular rate principles and merit careful review.

As background, under the FLSA, an employer ...

In the chaos of a global health pandemic and what some economists are calling the Great Suppression, Americans have shown amazing solidarity in the battle against the coronavirus (“COVID-19”).  Nationwide, citizens are social distancing and staying home while businesses are closing their doors and redeploying their resources to meet emergent demands.  However, this collective American commitment has come at a steep economic cost.  Millions of Americans suddenly find themselves unemployed or unable to work while previously thriving businesses have been thrown into ...

The Families First Coronavirus Response Act (the “Act”), which we detailed in a previous Advisory, requires private employers with fewer than 500 employees (“covered employers”) to provide paid sick leave (“Emergency Paid Sick Leave”) and family leave (“Public Health Emergency Leave”) for certain COVID-19 related absences and includes a tax credit for employers for the cost of the paid leave.

As covered employers prepare to meet these requirements, questions have arisen related to the payroll tax relief associated with these payments.  This update addresses ...

On March 24, 2020, the Wage and Hour Division (“WHD”) of the U.S. Department of Labor (“DOL”) issued initial guidance (“Guidance”) on the Families First Coronavirus Response Act (“FFCRA” or the “Act”), which we detailed in a previous Advisory.  In short, the Act requires private employers with fewer than 500 employees (“covered employers”) to provide paid sick and family leave for certain COVID-19 related absences and includes a tax credit for employers for the cost of the paid leave.

The Guidance comprises (i)  a Fact Sheet for Employers, (ii) a Fact Sheet ...

[Updated on April 17, 2020]

As temporary layoffs and furloughs become more prevalent during the COVID-19 outbreak, employers have been asking whether they may allow employees to take hardship distributions under their Section 401(k) plans for expenses and losses resulting from COVID-19.

Under the IRS hardship distribution final regulations, employers were permitted to add a new safe harbor hardship category that would allow an employee to take a hardship withdrawal to cover expenses and losses (including loss of income) incurred by the employee on account of a disaster declared ...

The Connecticut Department of Labor issued guidance entitled “Frequently Asked Questions About Coronavirus (COVID-19) For Workers and Employers” (last updated on March 20, 2020 (the “Guidance”).  The Guidance provides no new legal requirements or amendments to existing laws, but instead, analyzes issues raised by the COVID-19 pandemic under existing laws in the areas of unemployment insurance, paid sick leave, wage and hour law and the Connecticut Family and Medical Leave Act (“CTFMLA”).

Unemployment Insurance Benefits for Shut Downs and Quarantines

The ...

The Illinois “Stay at Home” Order took effect at 5:00 p.m. on March 21, 2020, and will last through April 7 (full text here).  This post will briefly summarize the Order’s application to Illinois businesses, and then provide a one-stop-shop index pointing you to Epstein Becker & Green, P.C. (“EBG”) and governmental resources to help you comply with existing and COVID-19-specific federal, state, and local regulations.

What Does “Stay at Home” Mean for My Business?

The Order requires “all individuals currently living within the State of Illinois” to “stay at home ...

On Monday March 23, 2020, President Donald Trump signed an executive order aimed at preventing hoarding and price gouging.  Attorney General William H. Barr indicated that the order is authorized under the Defense Protection Act, which allows the United States to compel private industry to assist in meeting national defense needs in response to national emergencies.

The new executive order empowers the Health and Human Services Secretary to designate supplies as “critical.”  Hoarding – accumulating quantities beyond those reasonable to satisfy personal or business needs ...

The U.S. Department of Labor (“DOL”) has invited employers and employees to engage in a “national online dialogue” in connection with the expected April 2, 2020 implementation of the Families First Coronavirus Response Act (FFCRA).  The DOL is soliciting comments and questions as it develops compliance assistance materials and outreach strategies related to FFCRA.

Input may be offered online at https://ffcra.ideascale.com through March 29, 2020, or through Twitter chat hosted by @ePolicyWorks on March 25, 2020 at 2:00 p.m. using the hashtag: #EPWChat.

Given the number of states that have already ordered the closure of non-essential businesses due to the COVID-19 pandemic, employers fortunate to remain operational are likely dealing with the myriad challenges of a remote workforce.

As we previously wrote here, employers with work-from-home (“WFH”) policies in place need to make sure they are appropriately compensating their workers and are otherwise complying with all applicable federal, state, and local wage and hour laws.

In the WFH context, the related wage and hour concepts of “waiting time” and “on-call ...

Department of State Suspends Routine Visa Services

On March 20, 2020, in response to significant worldwide challenges related to the novel coronavirus (“COVID-19”) pandemic, the Department of State announced that routine visa services will be temporarily suspended at all U.S. embassies and consulates. Further, embassies and consulates will cancel all routine immigrant and nonimmigrant visa appointments. Please note that services will continue to be available to U.S. citizens, and applicants with an urgent matter and need to travel immediately should follow the ...

On Saturday, March 21, 2020, New Jersey Governor Phil Murphy signed two Executive Orders to bring state-wide consistency to the mandated restrictions and closures arising from the COVID pandemic. The first, Executive Order 107 (Order 107) requires all nonessential New Jersey private businesses and nonprofits to close to the public (with certain exceptions), details restrictions and guidelines for those that are not required to close, and requires residents to stay at home unless they are engaging in excepted conduct.  Order 107 supersedes and increases the prior restrictions ...

The COVID-19 pandemic has leveled a blow against businesses everywhere.  The Governors of New York, California, Illinois, and Pennsylvania, for example, have ordered all non-essential businesses to close their physical locations and the California Governor has ordered all residents, except those performing essential functions, to stay home.  Governors across the country have issued orders restricting various business activities.  The trend is likely to continue in the coming weeks and to adversely impact the bottom line of many businesses.

Some businesses, however, may have ...

On March 20, 2020, New Jersey Governor Phil Murphy signed legislation (A3848), which bars employers from taking any adverse employment actions against employees who take, or request, time off due to an infectious disease that could affect others at work based on a written recommendation of a New Jersey licensed medical professional.   It also precludes an employer from refusing to reinstate the employee to the position held when the leave commenced with no reduction in seniority, status, employment benefits, pay or other terms and conditions of employment.  Although ...

As we explained in an earlier post, the Colorado Department of Labor and Employment (“DLE”) has issued new Health Emergency Leave with Pay (“HELP”) Rules in response to the coronavirus. Effective March 11, 2020, the HELP Rules mandate employers provide four (4) days of paid sick leave for employees in certain industries who have flu-like symptoms to receive COVID-19 testing. The DLE has since released FAQs to clarify some ambiguities in the HELP Rules.

Four Calendar Days of Paid Sick Time

Per the FAQs, the four days of paid sick leave are measured in calendar days. This ...

On March 17, 2020, the District of Columbia passed the COVID-19 Response Emergency Amendment Act of 2020 (the “Act”), which extends additional benefits under the District’s unemployment insurance (“UI”) law and the D.C. Family and Medical Leave Act (“DCFMLA”), and among other things also provides various forms of business relief. The Act is effective immediately.

DCFMLA Expansion

The Act expands the reach of the DCFMLA to provide “declaration-of-emergency” (“DOE”) leave to employees unable to work as the result of the circumstances giving rise to a ...

The impact of the novel coronavirus has slammed employers across the globe, and federal agencies such as the National Labor Relations Board (“Board”) are no exception.  The Board announced Thursday the unprecedented step that it was suspending all representation elections, including mail ballot elections, for at least two (2) weeks until at least April 3rd.

Just days earlier, the Agency implemented a nationwide telework policy in both its headquarters and regional offices, encouraging employees of the agency to work from home.  While implementing the election freeze, the ...

In a news conference on March 20, 2020, New York Gov. Andrew Cuomo ordered all nonessential New York State private businesses and nonprofits to reduce their workforce reporting to work by 100%  The announcement essentially amends Executive Order 202.6 (“Order”), issued by Gov. Cuomo on March 18, 2020, which required a 50% workforce reduction, by no later than March 20th at 8 p.m. (On March 19, 2020 Gov. Cuomo had announced a 75% required reduction, which has now been superseded).

The Order requires businesses and nonprofits to use telecommuting and work-from-home procedures ...

During this global health emergency, many employers are facing the necessity of curtailing operations and imposing temporary layoffs or furloughs with their workforce.  As a critical consideration, employers have been asking whether and to what extent they may permit group health care coverage to continue during a period of temporary layoff or furlough.

The following questions and answers provide some general guidelines and legal issues to consider in deciding whether to extend group health coverage during a temporary layoff or furlough.

What do we mean by temporary layoffs or ...

On March 17, 2020, the Equal Employment Opportunity Commission (EEOC) posted an article on its website, “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19.”  The article confirms that workplace anti-discrimination laws enforced by the EEOC remain applicable, but that nothing in those laws interferes with or prevents “employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.”

In addition, the article provides a link to guidance the ...

As the United States and the rest of the world hunker down in their homes to slow the spread of the novel coronavirus (COVID-19), many organizations have implemented “working-from-home” procedures that are designed to protect the health of the employees.  Working-from-home, however, presents heightened threats to the cybersecurity of benefit plans, including the plan’s assets and employee data that is collected, transmitted, and stored with regard to employee benefit plans.  Plan sponsors and fiduciaries have asked about the particular risks that working-from-home ...

The COVID-19 global pandemic has created a multitude of business and workforce challenges for employers.  In addition to addressing organizational issues, employers that sponsor employee benefit plans and plan fiduciaries must continue to manage and administer the benefit plans as well as address plan participant inquiries during these unprecedented and uncertain times.

One area where plan fiduciaries are seeking guidance concerns oversight of defined contribution plan investment options and any additional actions that they can take now with respect to monitoring such ...

As we have discussed in prior Advisories, the 2019 Novel Coronavirus (“Coronavirus” or “COVID-19”) public health emergency is raising important issues for employers addressing rapidly developing disruptions to the workplace and the lives of employees with mass school closures, workplace closings, the need to reduce staff and expenses, etc. Employers with  unionized workforces must take certain additional considerations into account when developing and implementing response plans to the current crisis.

Under the National Labor Relations Act (“NLRA” or ...

As many employers and employees in the State of New York know, when an individual files claims for unemployment insurance benefits, New York Labor Law, Section 590, Subdivision 7, has a mandatory seven day waiting period before unemployment benefits may be paid.

On March 7, 2020, Governor Andrew Cuomo issued Executive Order No. 202.1, declaring a State disaster emergency for the entire State of New York (the “Order”). The Order, which is entitled “Suspension and Modification of Laws Relating to the Disaster Emergency,” suspends and modifies many existing laws.

This ...

On March 10, 2020, Colorado Governor Jared Polis issued an executive order directing he Colorado Department of Labor and Employment (“DLE”) to create emergency rules to “ensure workers in food handling, hospitality, child care, health care, and education can get paid sick leave to miss work if they exhibit flu-like symptoms and have to miss work awaiting testing results for COVID-19.”

The DLE issued the Colorado Health Emergency Leave with Pay (“HELP”) Rules, which mandates four days of paid sick leave for employees in certain industries who have flu-like symptoms to ...

At the time of publication, at least twenty four states, plus Washington D.C. have declared states of emergency related to the novel coronavirus (“COVID-19”), with that number growing by the hour.  In addition to making more resources available to residents, in many cases, the declarations also trigger additional protections to consumers in the form of anti-price gouging laws.  These laws, which automatically go into effect, are intended to prevent merchants from significantly increasing the cost of consumer goods and services during a crisis.

For instance, in New Jersey a ten ...

Employers grappling with workplace attendance issues in the wake of the COVID-19 coronavirus may soon face additional challenges resulting from a potential economic downturn.  Media stories are already beginning to report on potential furloughs and layoffs.  For some employers, reducing the workweek (e.g., from 5 working days to 4 working days) could be a reasonable business response.  But would reducing the workweek affect the overtime exemption for exempt employees?

That question has been answered by the Tenth Circuit in In re Wal-Mart Stores, Inc., 395 F.3d 1177 (10th Cir ...

As the number of U.S. states reporting cases of COVID-19 coronavirus increases, many employers are imposing mandatory work from home (“WFH”) policies to mitigate risk of contamination and ensure business continuity.  Some employers are requiring employees who have travelled to or received visitors from mainland China (or other areas with high infection rates) and those with fever or other flu-like symptoms to remain at home for 14 days, while others are instructing half or more, up to their entire workforce, to work remotely until further notice.  Whatever the form, employers ...

In our new Advisory, "Responding to the Coronavirus (COVID-19) Outbreak: Update on Best Practices for Employers," we review significant developments since our January 30th Advisory.

Following is the "What Employers Should Do Now" section of the new Advisory:

• Appoint a single individual or department as the point of contact within your organization for questions about Coronavirus and to ensure a coordinated and consistent response to all inquiries.
• Provide updated information to employees about the symptoms of COVID-19 and affected areas.
• Educate supervisors on the ...