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FortneyScott’s May 18, 2020 COVID-19 Weekly Briefing – Responding to Key Legal Challenges Employers Face

REGISTER HERE to join FortneyScott’s complimentary COVID-19 Weekly Briefing on Monday, May 18th  from noon to 1:00 pm ET.  

During this Weekly Briefing, FortneyScott’s attorneys will discuss the most recent developments and updates, and also address some of the key legal challenges that employers are facing, including:

  • Liability claims and possible legal safe harbors that are being debated;
  • Wage and hour compliance challenges, including whether temperature checks and additional pre- and post-work COVID-related activities are compensable, and exempt employee considerations;
  • Layoffs for employees that are not being called back, including WARN obligations and best practices to minimize disparate impact claims under Title VII; and,
  • Administering the new paid sick and family obligations.

This briefing is the eighth in the weekly series that FortneyScott offers to inform and assist employers in responding to the COVID-19 pandemic.

If you have any questions that you would like to have addressed during the Weekly Briefing, please submit via email to info@fortneyscott.com

Previous FS Weekly Briefings

If you were unable to attend the earlier FS Weekly Briefings, you can access them below.

View FS May 11 Weekly Briefing Discussion with Special Guest Speaker from J&J on what steps have been taken for their workforce and maintaining its focus on diversity and inclusion during the pandemic.

View FS May 4 Weekly Briefing Review of the legal and practical issues that will arise when employers re-open their businesses.

View FS April 27 Weekly Briefing Overview of the operational changes and key developments from the federal agencies governing the workplace in response to the pandemic.

View FS April 20 Weekly Briefing – Providing an overview of the new Federal Guidelines, Federal Agency developments, and addressing FAQs.

View FS April 13 Weekly Briefing – Addressing legal and HR challenges in the current workplace.

View FS April 6 Weekly Briefing – Providing an update on key developments and the new and expanded unemployment benefit provisions under the PUA and FPUC.

View FS March 30 Weekly Briefing – Addressing the new federal paid sick and family leave enacted in the Family Friendly and CARES Acts.

Please forward this information to those in your organization who could benefit from these Weekly Briefings.

FortneyScott is based in our nation’s capital, and we are staying on top of the rapid developments relating to the Coronavirus.  We are continuing to advise our clients and to assist the employer community in successfully addressing the COVID-19 pandemic challenges that employers are facing.

FortneyScott’s May 11, 2020 COVID-19 Weekly Briefing – What Employers Are Doing to Reopen

REGISTER HERE to join FortneyScott’s complimentary COVID-19 Weekly Briefing on Monday, May 11th  from noon to 1:00 pm ET.  

During this Weekly Briefing, FortneyScott’s attorneys and WorkPlace HR’s consultant will be joined by Sharon Fronabarger, Head of Diversity & Inclusion with Johnson & Johnson, who will discuss how J&J is balancing working during the pandemic and its long-time focus on diversity and inclusion with its internal and external stakeholders.  We also will provide updates on key legislative and policy developments impacting the workplace, and address your most frequently asked questions.  This briefing is the eighth in the weekly series that FortneyScott offers to inform and assist employers in responding to the COVID-19 pandemic.

If you have any questions that you would like to have addressed during the Weekly Briefing, please submit via email to info@fortneyscott.com.

Previous FS Weekly Briefings

If you were unable to attend the earlier FS Weekly Briefings, you can access them below.

View FS May 4 Weekly Briefing Review of the legal and practical issues that will arise when employers re-open their businesses.

View FS April 27 Weekly Briefing Overview of the operational changes and key developments from the federal agencies governing the workplace in response to the pandemic.

View FS April 20 Weekly Briefing – Providing an overview of the new Federal Guidelines, Federal Agency developments, and addressing FAQs.

View FS April 13 Weekly Briefing – Addressing legal and HR challenges in the current workplace.

View FS April 6 Weekly Briefing – Providing an update on key developments and the new and expanded unemployment benefit provisions under the PUA and FPUC.

View FS March 30 Weekly Briefing – Addressing the new federal paid sick and family leave enacted in the Family Friendly and CARES Acts.

Please forward this information to those in your organization who could benefit from these Weekly Briefings.

FortneyScott is based in our nation’s capital, and we are staying on top of the rapid developments relating to the coronavirus.  We are continuing to advise our clients and to assist the employer community in successfully addressing the COVID-19 pandemic challenges that employers are facing.

FortneyScott’s May 4, 2020 COVID-19 Weekly Briefing – Returning to Work: What Employers Are Asking

REGISTER HERE to join FortneyScott’s complimentary COVID-19 Weekly Briefing on Monday, May 4th from noon to 1:00 pm ET.  

During this Weekly Briefing, the FortneyScott attorneys will focus on the many legal and practical issues that will arise when employers re-open their businesses, such as, who to bring back? how to protect them? what if some refuse? is there liability if workers become sick?  The legal obligations of OSHA, the EEO laws, labor–management laws, and others will be examined.  As with our other Briefings, we also will provide updates on key legislative and policy developments impacting the workplace, and address your most frequently asked questions.

If you have any questions that you would like to have addressed during the Weekly Briefing, please submit via email to info@fortneyscott.com.

Previous FS Weekly Briefings

If you were unable to attend the earlier FS Weekly Briefings, you can access them below.

View FS April 27 Weekly Briefing  Overview of the operational changes and key developments from the federal agencies governing the workplace in response to the pandemic.

View FS April 20 Weekly Briefing – Providing an overview of the new Federal Guidelines, Federal Agency developments, and addressing FAQs.

View FS April 13 Weekly Briefing – Addressing legal and HR challenges in the current workplace.

View FS April 6 Weekly Briefing – Providing an update on key developments and the new and expanded unemployment benefit provisions under the PUA and FPUC.

View FS March 30 Weekly Briefing  Addressing the new federal paid sick and family leave enacted in the Family Friendly and CARES Acts.

Please forward this information to those in your organization who could benefit from these Weekly Briefings.

FortneyScott is based in our nation’s capital, and we are staying on top of the rapid developments relating to the coronavirus.  We are continuing to advise our clients and to assist the employer community in successfully addressing the COVID-19 pandemic challenges that employers are facing.

Register for FortneyScott’s April 27, 2020 COVID-19 Weekly Briefing Returning to Work under the Federal Guidelines

REGISTER HERE to join FortneyScott’s complimentary COVID-19 Weekly Briefing on Monday, April 27 from noon to 1:00 pm ET.  

During this Weekly Briefing, the FortneyScott attorneys and WorkPlace HR consultant will focus on the evolving issues employers face in planning for their employees to return to work. On April 16, the President announced Guidelines that include three phases for “Opening Up America Again.” The next Weekly Briefing will focus on preparing for Phase One under the new Guidelines.  We will address best practices for compliance with the President’s and the CDC’s guidelines, including social distancing plans, temperature checks, and contact tracing.  As with our other Briefings, we also will provide updates on key legislative and policy developments impacting the workplace, and address FAQs.

If you have any questions that you would like to have addressed during the Weekly Briefing, please submit those via email to info@fortneyscott.com.

Previous FortneyScott Weekly Briefings

If you were unable to attend the earlier FS Weekly Briefings, you can access them below.

View FS April 20 Weekly Briefing – Providing an overview of the new Federal Guidelines, Federal Agency developments, and addressing FAQs.

View FS April 13 Weekly Briefing – Addressing legal and HR challenges in the current workplace.

View FS April 6 Weekly Briefing – Providing an update on key developments and the new and expanded unemployment benefit provisions under the PUA and FPUC.

View FS March 30 Weekly Briefing – Addressing the new federal paid sick and family leave enacted in the Family Friendly and CARES Acts.

Please forward this information to those in your organization who could benefit from these Weekly Briefings.

FortneyScott is based in our nation’s capital, and we are staying on top of the rapid developments relating to the coronavirus.  We are continuing to advise our clients and to assist the employer community in successfully addressing the COVID-19 pandemic challenges that employers are facing.

Register for FS April 20 COVID-19 Weekly Briefing – Key Federal Agency Developments and FAQs

REGISTER HERE to join FortneyScott’s complimentary COVID-19 Weekly Briefing on Monday, April 20 from noon to 1:00 pm ET.  

During this Weekly Briefing, FortneyScott will provide an overview of the operational changes and key developments during the pandemic by the federal agencies governing the workplace.  We will also discuss the latest updates and address the most frequently asked questions.  If you have any questions that you would like to have addressed during the Weekly Briefing, please submit via email to info@fortneyscott.com.

Previous FS Weekly Briefings

If you were unable to attend the earlier FS Weekly Briefings, you can access them below.

View FS April 13 Weekly Briefing – Addressing legal and HR challenges in the current workplace.

View FS April 6 Weekly Briefing – Providing an update on key developments and the new and expanded unemployment benefit provisions under the PUA and FPUC.

View FS March 30 Weekly Briefing – Addressing the new federal paid sick and family leave enacted in the Family Friendly and CARES Acts.

Please forward this information to those in your organization who could benefit from these Weekly Briefings.

FortneyScott is based in our nation’s capital, and we are staying on top of the rapid developments relating to the coronavirus.  We are continuing to advise our clients and to assist the employer community in successfully addressing the COVID-19 pandemic challenges that employers are facing.

EEOC Suspends the Issuance of Right-to-Sue Letters During Pandemic

EEOC has temporarily paused closing its investigations during the current COVID-19 pandemic, and also suspended the issuance of right-to-sue letters.  The agency had quietly taken steps beginning on March 21, 2020 to safeguard charging parties’ rights during the pandemic.  According to published reports, EEOC chose to publicize that it has suspended closing investigations of charges or issuing right-to-sue letters unless requested by a charging party following the agency’s receipt of a letter by more than 80 employee advocates.

Under Title VII of the Civil Rights Act, employees have 90 days in which to file a lawsuit in federal district court after they receive a right-to-sue letter from the EEOC. Although the EEOC has not published guidance for employees of private employers, it has provided updated guidance for federal agencies and their employees. For employers that typically monitor the 90-day period following the issuance of a right-to-sue letter to determine whether unresolved EEOC charges and investigations will result in litigation, the EEOC’s suspension extends the period of uncertainty for employers to know whether they will face litigation claims on these pending EEOC matters.

Register for FS April 13 COVID-19 Weekly Briefing – Legal and HR Challenges in the Workplace

FS’s Next Weekly Briefing – Legal and HR Challenges

To register for FS’s complimentary COVID-19 Weekly Briefing on April 13, please REGISTER HERE.

Employers face a multitude of legal and HR challenges in successfully managing the workforce while navigating the multiple state and local restrictions and understanding the newly enacted legislation in response to the COVID-19 pandemic. It now is more important than ever that employers ensure that their employment policies and HR practices are up to date and effectively implemented. Join FortneyScott and WorkPlace HR for our COVID-19 Weekly Briefing on Monday, April 13 from noon to 1:00 pm ET as we address the legal and HR challenges, including:

  • Strategies for successfully implementing the new federal paid sick and family leave enacted in the Family Friendly and CARES Acts;
  • Best practices for effectively managing workers working from home, including tracking hours worked and monitoring performance;
  • Understanding the employers’ duties to provide a safe workplace, and responding to employee concerns relating to the workplace and the health of other workers; and
  • The critical role for legal and HR in implementing new legislation and regulations, and working with the employers’ key stakeholders.

Our subject matter specialists, including a highly experienced employment lawyer and HR consultant, will provide helpful tips and practical insights.

Previous FS Weekly Briefings

If you were unable to attend our previous FS Weekly Briefings, you can access them below.

View FS March 30 Weekly Briefing – Topics included the new federal paid sick and family leave enacted in the Family Friendly and CARES Acts.

View FS April 6 Weekly Briefing – Topics included a brief update on key developments and new and expanded unemployment benefit provisions under the PUA and FPUC.

DOL Issues Regulations Regarding Paid Leave Under the FFCRA

Today the Families First Coronavirus Response Act (FFCRA) became effective, requiring employers with fewer than 500 employees to begin providing paid sick leave and expanded family leave for employees who are unable to work due to the COVID-19 pandemic. As expected, the DOL Wage & Hour Division issued new regulations implementing these paid leave provisions. The Temporary Regulations are effective immediately, from April 1 through December 31, 2020, although DOL has deferred enforcement initially until April 18, 2020. The new regulations generally are consistent with the informal guidances (Questions and Answers) that DOL recently issued. The regulations are available HERE.

We will be discussing these regulations, as well as other coronavirus-related developments, during our upcoming COVID-19 Weekly Briefing on Monday, April 6th. If you would like to register for the weekly briefing, please click register HERE.

Please contact either John Clifford at FortneyScott (jclifford@fortneyscott.com) or your FortneyScott attorney if you have questions regarding the impact of these new regulations, or how the FFCRA affects your company’s compliance obligations.

FortneyScott’s COVID-19 Weekly Briefings and Employer Help Desk

As a reminder, FortneyScott has expanded its professional services to aid our clients in responding to the COVID-19 pandemic.

Weekly Briefings

Our next FS Weekly Briefing will be on Monday, April 6. FortneyScott attorneys will provide an update on the new key developments affecting the workplace, including a review of the new and expanded unemployment benefit provisions (Pandemic Unemployment Assistance (PUA) and Federal Pandemic Unemployment Compensation (FPUC)). If you are interested in participating in FS’s Weekly Briefings, please REGISTER HERE. 

On March 30, we presented the new federal paid sick and family leave enacted in the Family Friendly and CARES Acts. If you missed FS’s March 30 Weekly Briefing, you can watch it by CLICKING HERE.

The FS Weekly Briefings are complimentary and will continue to be held on Mondays from 12:00 noon to 1:00 PM (Eastern). Our attorneys and HR consultants will address the leading workforce issues, including compliance with new legislation, managing leaves of absence, workplace safety, EEO/ADA issues, layoffs and furloughs, implementing new HR policies, and related issues. The Briefings also will provide a forum for employers to ask questions and share insights about the issues they are facing.

FortneyScott’s COVID-19 Employer Help Desk

FortneyScott has assembled attorneys and HR consultants to provide efficient, effective services on a fixed fee basis through the FS COVID-19 Employer Help Desk. The Help Desk services can be tailored to supplement and aid employers’ legal, HR, and compliance teams that are addressing the significant legal and practical challenges as the COVID-19 pandemic continues to evolve. Please contact your FortneyScott attorney or e-mail FortneyScott for more information on how the Help Desk can assist you and your team in addressing COVID-19 challenges.

Please forward this information to those in your organization who also could benefit from these expanded professional services.

We are here in our nation’s capital, staying on top of the rapid developments surrounding the coronavirus. We will continue to work with our clients to successfully address the COVID-19 pandemic challenges that employers are facing.

What Employers Need to Know About the Families First Coronavirus Response Act

In response to the coronavirus of 2019 (COVID-19), President Trump signed the Families First Coronavirus Response Act, H.R. 6201, into law on March 18, 2020.  The Act provides various forms of relief including free COVID-19 testing, expanded food assistance and unemployment benefits, and requires employers to provide additional protections for healthcare workers.  Additional bills are pending and likely to be finalized and provide additional relief.

Significantly, the Act also requires employers with fewer than 500 employees to provide paid sick leave and expanded family leave for employees.  Employers with 500 or more employees are not subject to these requirements.

The key employment-related provisions of the bill are summarized below.  These provisions will become effective within 15 days (April 2, 2020) – employers must act promptly to ensure that their policies comply with these new requirements.

Emergency Paid Sick Leave

Under the Act, employers with fewer than 500 employees will be required to provide paid sick leave to any employee who is:

  • subject to a coronavirus quarantine or isolation order or who has been advised by a health care provider to self-quarantine due to coronavirus concerns;
  • experiencing symptoms of coronavirus and is seeking a medical diagnosis;
  • providing care for a family member who is self-isolating due to a diagnosis of coronavirus, experiencing symptoms of coronavirus and needs to obtain medical diagnosis or care, or quarantining due to exposure or exhibition of symptoms; or
  • caring for a child whose school or place of care is closed, or the child care provider of the child is unavailable, due to coronavirus.

Full-time and part-time employees are eligible for paid leave under the Act.  Full-time employees are to receive 80 hours of sick leave, and part-time workers are entitled to leave equal to the number of hours they work, on average, over a 2-week period.

The amount of pay employers are required to provide under the Act depends on the reason for an employee’s leave.  Employees taking leave for themselves must be paid at their regular rate up to a cap of $511 per day and a total $5,110.  Employees taking leave to care for a family member must be paid at two-thirds of their regular rate, with a cap of $200 per day and a total of $2,000.

Notably, the sick leave required under the Act must be provided in addition to any paid leave already provided by employers.  Employers cannot require a worker to use any other available paid leave before using the sick leave required under the Act.

Finally, employers will be required to post a new notice containing information regarding the emergency sick leave provisions of the Act.  The U.S. Department of Labor will create a model notice within the next week.

Emergency Family and Medical Leave Expansion

In addition to the new paid sick leave obligations, the Act amends the Family and Medical Leave Act (FMLA) and requires that employers with fewer than 500 workers must provide up to 12 weeks of family and medical (FML) leave for employees unable to work or telework because they have to care for a child if the child’s school or place of care has been closed, or if the child care provider of that child is unavailable due to a coronavirus emergency.  To be eligible for FML leave under the Act, employees must have been employed for at least 30 days.

Under this provision, the first 10 days of leave may be unpaid, although a worker may choose to use accrued vacation days or other available medical, sick or PTO leave for those days.  After the initial 10 days, workers on FMLA leave must be paid at two-thirds of their regular rate. The paid leave under this provision is capped at $200 per day and $10,000 in total.

In most cases, as required by the existing FMLA leave requirements, the new expanded FML leave under the Act is job-protected and an employer must return the employee to the same or equivalent position upon their return to work.  The Act, however, provides an exception for employers with less than 25 employees if (1) the employee’s job no longer exists due to economic conditions or other changes in the employer’s operating conditions caused by the coronavirus pandemic, and (2) the employer makes reasonable efforts to restore the employee to an equivalent position.

Potential Exemptions

Importantly, under the Act, the Secretary of Labor is authorized to issue regulations exempting: (1) certain health care providers and emergency responders from paid leave benefits, and (2) small businesses with fewer than 50 employees from the newly added paid leave requirements “when the imposition of such requirements would jeopardize the viability of the business as a growing concern.”

Employer Tax Credits

The Act provides for a series of refundable tax credits for employers providing paid emergency sick leave or paid FMLA.  Specifically, employers will be entitled to a refundable tax credit equal to 100 percent of qualified sick or family leave wages required by the Act.  These tax credits will be allowed against the employer portion of Social Security taxes; however, if the credit exceeds the employer’s total Social Security taxes for all employees for any calendar quarter, the excess credit will be refundable to the employer.

Next Steps for Employers


Promptly review the Act, which is available here.  Employers need to assess which provisions are applicable to them and determine how to comply.  There will be new regulations and additional legislation in the near future, so it is essential to stay on top of these developments.  We are closely monitoring these matters and will provide updates.

 

Please contact either John Clifford at FortneyScott (jclifford@fortneyscott.com) or your FortneyScott attorney on how these changes affect your company’s compliance obligations.