The Department of Labor (“DOL”) released a number of “Frequently Asked Questions” related to the FFCRA: https://www.dol.gov/agencies/whd/pandemic. The three main takeaways are:
1. The effective date of the FFCRA is April 1, 2020. 2. Employers are required to post additional labor law posters regarding the FFCRA. Copies of those posters can be found here and here. 3. The DOL has not yet issued regulations related to businesses with fewer than 50 employees claiming exemptions from the new law. In response to the question “how do I take advantage of the small business exemption?,” the DOL advises that small business owners should document why complying with FFCRA “would jeopardize the viability of the business as a going concern.” The DOL also notes that business owners should not send materials to the DOL in an attempt to qualify for the exemption.
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In an attempt to “flatten the curve” and prevent the spread of COVID-19/Coronavirus, Mecklenburg County has issued a stay-at-home order for all County residents beginning on Thursday, March 26, 2020 at 8 a.m. and effective through April 16, 2020. This order encourages all county residents to stay in their residence for the next 21 days except when engaging in or providing essential activities and services.
Some examples of essential activities include going to the grocery store, warehouse store, or pharmacy, going to a restaurant for take-out or delivery, receiving medical care that you cannot obtain virtually, caring for a family member or friend, traveling to and from a job performing an essential service, and going outside to walk pets or exercise (while maintaining a safe distance of at least six feet between you and another person). For business owners, it is important to know what types of work are considered essential and thus do not need to transition to complete “work-from-home” operations while this order is effective. Businesses and types of work that are considered essential include the following: 1. Healthcare and Public Health Operations: This includes all healthcare workers in hospitals; healthcare workers where medical or dental care cannot be provided virtually, pharmacy personnel, mental health and substance abuse providers, reproductive healthcare providers, home healthcare service providers, collectors of blood or plasma, pharmaceutical and biotechnology companies, and other healthcare workers or suppliers that assist with or provide services for healthcare operations 2. Essential Infrastructure: This includes food production, distribution, and sale,distribution centers, construction, building management and maintenance, operations of utilities such as water, gas, sewage, electricity, collection and removal of garbage and recycling, oil and biofuel refineries, airport operations, maintenance of roads and public transportation, cybersecurity, internet, video, and telecommunications systems 3. Human Service Operations: This include long-term care facilities; residential settings and shelters for adults and children, including seniors, or people with disabilities, substance abuse disorders, and/or mental illness, home-based services for such individuals, field offices relating to the provision and/or determination of eligibility for basic need services, developmental centers, adoption centers, or businesses providing food, shelter, social services, and other basic necessities of life to disadvantaged or needy individuals 4. Essential Government Functions: This includes first responders, dispatchers, court personnel, law enforcement and corrections personnel, hazardous materials responders, child and adult protection services, housing and shelter personnel, military; and other employee working to support essential businesses or operation 5. Stores Selling Groceries and Medicine: This includes grocery stores, pharmacies, certified farmer’s markets, convenience stores, pet supplies, stores selling fresh meats, fish, and poultry, stores selling alcoholic beverages, and stores selling household consumer products, such as cleaning products or personal care products 6. Food, Beverage, and Agriculture: This includes food and beverage manufacturing, production, processing, cultivation, including farming, livestock, fishing, baking, distribution of animals and good for consumption, providing food, shelter, and other necessities for animals. This also includes animal shelters, animal rescues, kennels, and adoption facilities. 7. Hardware and Supply Stores 8. Information and Media: This includes media, such as television, radio, newspapers, and communication and information technology, such as internet service providers and IT 9. Businesses Essential to Transportation Services: This includes airlines, taxis, public transportation, transportation network providers (such as Uber and Lyft), other transportation and logistics necessary to facilitate essential activities or essential business operations, vehicle rental, logistics, gas stations, auto-supply and auto- repair and related facilities, and bicycle shop and related facilities 10. Financial Institutions: This includes banks, currency exchange, and consumer lenders, including but not limited, to payday lenders, pawnbrokers, consumer installment lenders and sales finance lenders, credit unions, appraisers, title companies, financial markets, trading and future exchanges, affiliates of financial institutions, entities that issue bonds, related financial institutions, and institutions selling financial products 11. Mail and Shipping/Delivery Services: This includes post offices and other businesses that provide shipping and delivery services, businesses that ship or deliver groceries, food, goods or services to end users or through commercial channels 12. Educational Institutions: This includes all public and private educational institutions from pre-K through college and university and which may only operate for purposes of facilitating distance learning, performing critical research related to COVID-19, or performing essential operations as defined below 13. Public Works and Utilities: This includes energy, water and wastewater, transportation and logistics for the County, and businesses handling hazardous materials 14. Organizations Providing Charitable and Social Services: This includes both businesses and nonprofits (both religious and secular) providing food, shelter, and social services, such as homeless shelters, services to help the economically disadvantaged or disabled, and food banks 15. Home-based Care and Services: This includes home-based care for adults, seniors, children, people with disabilities. This includes nannies who may travel to a child’s home to provide care and meal delivery services. 16. Residential facilities and shelters: This includes facilities for adults, seniors, and children, and/or people with disabilities, substance abuse disorders, or mental illness. Some examples include nursing homes, assisted living facilities, and homeless shelters 17. Childcare Centers: This is limited to childcare for employees providing essential services such as first responders, healthcare workers, public health, health and human services staff, and others responding to COVID-19 18. Restaurants for Off-Site Consumption: This is limited to restaurants offering curb-side pick-up, delivery services (through the restaurant or third-party delivery service), or drive-thru. No on-site consumption is permitted. 19. Hotels and Motels: Operations are limited to lodging and providing carry-out or delivery food 20. Laundry Services: This includes laundromats and dry cleaners, both industrial and commercial 21. Funeral Services: This includes cremation, burial, cemetery and related services. 22. Professional Services: This includes legal, accounting, insurance, and real estate (restricted to appraisal and title services) 23. Construction and Critical Trades: This includes tradespeople providing services such as building and construction and related services such as plumbers, electricians, exterminators, cleaning and janitorial staff for commercial and governmental properties, security staff, operating engineers, HVAC, painting, moving and relocation services, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, essential activities, and essential businesses 24. Business manufacturing or providing supplies to work from home 25. Businesses providing supplies for essential business and operations: This includes businesses manufacturing such products or providing support, such as computers, audio-visual electronics, household appliances, IT and telecommunication equipment, hardware, heating, cooling, and plumbing equipment, firearm and ammunition suppliers for purposes of safety and security, optics and photography equipment, medical and orthopedic equipment 26. Manufacturing, distribution, and supply chain: This is limited to critical products and industries. This includes manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services related to healthcare, pharmaceuticals, technology, biotechnology, chemicals and sanitation, waste pickup and disposal, food and beverage, transportation, energy, national defense, steel and steel products, petroleum and fuel, mining, construction, communications, and other products used by essential businesses All non-essential businesses must reduce operations except for “minimum basic operations,” which means operations limited to those activities necessary to maintain and preserve the value of the business (including maintaining inventory, preserving condition of the business’s physical location and/or equipment, ensure security, process payroll and employee benefits) or facilitate employees being able to work from home. Some examples of non-essential businesses are gyms and recreational centers, theaters, shopping malls, museums, sporting and entertainment venues, salons and spas, bowling alleys, and skating rinks. While essential businesses are allowed to continue operating, it is important to establish education and protocol for allowing employees to continue doing their jobs while minimizing the risk of exposure among employees and others. This includes continuing to practice social distancing practices of maintaining at least six feet between employees and customers, enhanced sanitation protocol and access to sanitization products, separating vulnerable employees or populations when applicable, and maintaining communication with employees so that they may be able to reach their employer remotely if necessary. Finally, the County has ordered that all public and private gatherings of more than 10 people are prohibited (except where they reside in the same house). Yesterday, Congress passed the Families First Coronavirus Response Act, and the day before Governor Cooper issued an Executive Order expanding unemployment insurance benefits. The President has not yet signed the federal act into law, but it is anticipated that he will do so immediately. The Families First Coronavirus Response Act Unlike the regular Family Medical Leave Act (“FMLA”), The Families First Coronavirus Response Act (FFCRA) would apply to an employer with fewer than 50 employees. Both the proposed FMLA changes and the proposed paid sick leave would take effect 15 days after enactment and would remain in place only until the end of 2020. There are there separate acts within the FFCRA that are relevant to business owners. 1) Emergency FMLA Expansion Act (EFMLAEA) a. Unlike regular FMLA, this would apply to employees if they had been employed at least thirty days. b. Eligible employees get 12 weeks of FMLA leave if they have to miss work (or cannot telework) because they have to stay home with children if the school is closed more than five consecutive days. c. FMLA leave is unpaid for the first two weeks. However, the employee can choose to use their own paid sick leave (or the emergency paid sick leave granted below). d. After the first two weeks, employers are required to pay the employee at a rate greater than or equal to 2/3 the employee’s rate of pay. e. Leave is capped at $200 per day and $10,000 in the aggregate. f. This is in addition to benefits already available under the FMLA. g. The Department of Labor has explicit authority to create regulations that would “exempt small businesses with fewer than 50 employees from the requirements of the EFMLAEA when the imposition of such requirements would jeopardize the viability of the business.”* h. While the FMLA generally requires employers to restore covered employees to the job they had before they took leave, employers with fewer than 25 employees would not be required to if the employee takes leave under this Act and their position no longer exists due to economic conditions or other changes in the employer’s operating conditions that (1) affect employment and (2) are caused by the public health emergency during the leave period. However, the employer must make reasonable efforts to restore the employee to a position equivalent to one they held when leave began (i.e., equivalent benefits, pay, terms and conditions of employment). Additionally, the employer would be required to make reasonable efforts to contact the employee if an equivalent position becomes available during the one year period beginning on the earlier of (i) the date on which the qualifying need related to public health emergency concludes, or (ii) the date that is 12 weeks after the date on which the employee’s public health emergency leave commences. 2) Emergency Paid Sick Leave Act a. If an employee takes leave due to being quarantined or ordered isolated, a diagnosis of Coronavirus, showing symptoms of the Coronavirus, being ordered to stay home due to exposure to Coronavirus, staying home to care for a sick or exposed person, or staying home with children, an employer must pay two full weeks of paid leave (part time employees will be paid according to the number of hours they work on average). b. Leave is capped at $511 per day and $5,110 in the aggregate to care for themselves and $200 per day and $2,000 in the aggregate to care for another. c. This leave would be in addition to any employer-provided leave, and employers would not be permitted to change their leave policy. d. An employee can take this leave no matter how long they’ve been employed (no thirty-day requirement). 3) Tax Credits for Paid Sick and Paid Family and Medical Leave - Covered employers would be provided payroll tax credits to cover the wages paid to employees under the sick leave and family medical leave programs described above. *We have no idea when regulations would be issued and what they would say. Governor Cooper Issues Executive Order Expanding Unemployment Insurance Benefits The executive order waives the one-week waiting period to apply for benefits and removes the requirement to look for another job while receiving benefits. People can now apply online, and employees whose hours are simply reduced due to the response to the Coronavirus outbreak (and not laid off) can apply for benefits. Employers will not be held responsible for employees seeking benefits if doing so is a result of the response to the Coronavirus outbreak.
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