WELCOME The presentation will begin at 12 p.m. New HR Laws During Coronavirus Response Brought to you by the University of St. Thomas: Schulze School of Entrepreneurship Small Business Development Center Family Business Center https://link.stthomas.edu/businesssupportseries
COVID-19 New Employment Laws March 31, 2020 @ Noon CDT
About Kate • Management-side Employment Attorney & HR Consultant • Human Resources Officer for the U.S. Department of State in Jerusalem & Zambia • Started tHRive Law & Consulting • Training, policies, investigations • kbischoff@thrivelawconsulting.com
Families First Coronavirus Response Act For employers with fewer than 500 employees… Expansion of the Family & Medical • Leave Act through December 2020 • Emergency Paid Sick Leave Effective April 1, 2020 •
Fewer than 500 Employees • The date on which the employee takes the paid sick or leave • If you’ve got 505 now, employee is NOT eligible • If you drop below 500, employee IS eligible • INCLUDES part-time & full-time employees • Include anyone out on leave • Any “joint employees” including those from an agency • Independent contractors are NOT included • If multiple subsidiaries: • Common management • Common ownership • Common control/interchange of employees
Emergency Paid Sick Leave • Employer with fewer than 500 employees • No 30-day requirement for this leave, employees are eligible as of day 1 • Non-federal public sector • Any employee is immediately eligible for paid sick leave • Full-time employees get a maximum 80 hours at their regular rate • Part-time employees get the number of hours the employee regularly works over a two-week period • In addition to any PTO/sick you already offer, including unlimited paid time off • No credit for any time off prior to April 1
Emergency Sick Leave Reasons 1. Received an isolation or quarantine order related to COVID-19 2. Advised by their health care provider to self-quarantine 3. Experiencing symptoms of COVID-19 & seeking diagnosis 4. Caring for a family member who is quarantining or subject to an isolation order 5. Caring for a son or daughter who can’t be in school or daycare due to COVID-19 6. Employee is experiencing substantially similar conditions
How Much? • The regular rate of pay is the average over a period of up to six months prior to the first date of the leave • Puts a cap on amounts • For reasons 1-3 (employee’s own conditions or government ordered), employee paid leave is their regular rate up to $511 per day or $5,110 total • For reasons 4-6 (caring for others or catchall), employee paid leave is their regular rate up to $200 per day or $2,000 total • May use withholdings you’ve collected but have not yet paid. • Talk with tax professional
Expanded Family & Medical Leave Act • Employers with fewer than 500 employees • Employee must have worked for you for 30 days • 12 weeks of leave • Unable to work (or telework) due to school/daycare closure • The first two weeks are unpaid (see emergency paid time off) • THEN, remaining ten weeks are paid out at 2/3 rd of employee’s pay (again maximum of $200 per day or $10,000 total) • Talk with a tax professional
Specific Employers • Employers under with fewer than 50 employees in a 75-mile radius – you can’t get sued under this expanded FMLA • Some guidance from Department Of Labor • Definition of health care provider is massive • Definition of first responder is massive • Expecting additional regulations shortly
Small Employers Exception • If providing the leave would require spending that would exceed available business revenues & mean closure • If providing the leave would result in substantial risk to the financial, health, or operational capabilities of the business because of the specialized skills, knowledge, or responsibilities • If providing the leave would mean that there are not sufficient workers who are able, willing & qualified & who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave & these labor or services are needed for the small business to operate at a minimal capacity
Scenario – Sick Dude • James is in Accounting • His live-in girlfriend is sick & told to self-isolate/quarantine • He is going to too • April 1: Has he called his healthcare provider to discuss whether he should self-quarantine? If yes & healthcare provider says he should = Emergency paid emergency sick leave at $511 per day
Scenario – Sick Dude Continued • What if we just lay him off instead of letting him self- quarantine? • If just him, there’s an argument that you’re trying to avoid paying him emergency paid sick time, expanded FMLA, or public policy & you could get sued • If he is part of a larger furlough, then probably okay
It’s HERE! • Mikayla calls & tells you she’s positive • Do I have to tell the other employees? • NO. Her condition is confidential medical information under the ADA • Don’t I have a moral obligation to tell them? • Hopefully, you’ve already put into place strategies around physical distancing • Split shifts/every other day/WFH • Increased hygiene • Staying home if you’re sick • Don’t I have to tell OSHA? • OSHA should be THE LAST thing on your mind right now
Furlough vs. Lay-off Both are eligible for unemployment Furlough Lay-off • Temporary lay-off with intent • Permanent lay- to bring back off/termination • May keep employee on health • May keep employee on health insurance and/or other benefits and/or other benefits benefits • Pay out accrued but unused • No need to pay out accrued PTO if practice/policy but unearned PTO
SBA Loan: Paycheck Protection • 500 or fewer employees • Do not reduce payroll • Up to $10 million • Forgivable if all employees are kept on payroll for 8 weeks • Maybe used for payroll, benefits, mortgage interest, rent, utilities • Talk with your banker & accountant • Hurry, only $349 billion available
Discrimination & Harassment • Asian Americans are reporting a spike in harassment • Familial status is a protected class • Temptation to use whether someone is eligible for the expanded FMLA as a cost-savings measure • Resist the temptation • Likely to result in a discrimination suit after this – remember, a one- year statute of limitations
How to Document This • DO NOT ASK FOR DOCUMENTATION FROM A HEALTH CARE PROVIDER! • Talk with the employee • Send an email to yourself regarding the conversation (date & time stamped) • Reason for the leave • Name of the health care provider • How you’ve calculated • Can use our old friend, Xcel to track • Share this information with the IRS/DOL • We can sort the documentation later if needed
Unemployment Benefits • Minnesota has expanded unemployment coverage • For COVID-19 related furloughs/terminations, employees are eligible as of day 1 – no waiting period • Encouraged to apply online • Congress massively increased benefits under the CARES Act • Unemployment is NOT a bad thing • Check with other states to determine if applicable to you
Shelter-In-Place Order • Debate about whether the shelter-in-place is a state or local quarantine or isolation order • Some no, therefore it would NOT trigger the emergency paid leave • Some say yes, therefore it WOULD trigger the emergency paid leave • I believe a statewide order would trigger the emergency paid leave for any organization still operating/employees still working • “Essential” vs “nonessential” businesses • Essential – Need the time off for the six reasons • Nonessential – Off & eligible for unemployment due to loss of work
Shelter-In-Place Math • April 1, 2020 • Governor orders (or has ordered) a shelter-in-place • Employee has kids under the age of 18 • Business is STILL operating • Emergency paid sick leave goes into effect: Regular rate up to $511 a day for reasons 1-3, $200 a day for reasons 4-6 • Expanded FMLA goes into effect: 2/3 rds regular rate rate up to $200 a day to $10,000 • Total per employee: $15,110 if employee needs the full amount of time
Shelter-In-Place Math • April 1, 2020 • Governor orders (or has ordered) a shelter-in-place • Employee has no kids • Business is STILL operating • Emergency paid sick leave goes into effect: Regular rate up to $511 a day to $5,110 for reasons 1-3, $200 for reasons 4-6 • Expanded FMLA does NOT apply
Shelter-In-Place Math • April 1, 2020 • Governor orders (or has ordered) a shelter-in-place • Employee has kids under the age of 18 • Business decides to close for time being • Employees are furloughed • No employee receives emergency sick leave or expanded FMLA because there’s employment to take a leave from
Kate Bischoff (612) 361-7707 (320) 249-9269 @k8bischHRLaw kbischoff@thrivelawconsulting.com thrivelawconsulting.com
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