Click here to subscribe to our Bowles Law e-letter
Click here to subscribe to our Bowles Law e-letter
With an estimated 95% of America’s residents, some 306 million people,now under some form of “stay home,” “safer at home,” “shelter in place” order, employers face unprecedented (sur)realities, rangin...
With an estimated 95% of America’s residents, some 306 million people, now under some form of “stay home,” “safer at home,” “shelter in place” order, employers face unprecedented (sur)realities, ranging from the sudden need for workforce reduction, blanket layoffs and furloughs, hastily constructed COVID-19 driven unemployment benefit alternatives, and the rapidly emerging and sometimes conflicting interpretations of the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief and Economic Security (CARES) Act.
We undertake to survey this wave of new laws and their applications in a 53-minute webinar Employment, Payroll, Leaves and Benefits in a COVID-19 World, produced by ePractice Manager, a leading dental practice management firm partnered with Nobel Biocare and the Texas Dental Association among others.
Short of an hour, we take on:
Viewing is without charge. As follow-up for participants, we provide no-charge the session’s PowerPoint panel set and other materials on email request.
Big thanks to ePractice Manager for the broad platform on which to present this vital information.
Please take advantage. “Knowledge is power” may be cliché but true.
Tim Bowles
April 10, 2020
Our Webinar on Workplace COVID-19 RealitiesEmployment, Payroll, Leaves and Benefits in a COVID-19 World
April 7, 2020
April 7, 2020
Employers with 500 or more employees and small businesses of 50 or fewer.
April 17, 2020
Employers with 500 or more employees worldwide.
All employers regardless of size.
May 12, 2020
All employers regardless of size (except for those with fewer than 50 employees between February 3, 2020 and March 4, 2020).
April 28, 2020
Until two calendar weeks after the expiration of the COVID19 local emergency period
Employers with 500 or more employees within the city, or 2,000 or more nationwide.
Until further notice
May 19, 2020
Employers with 500 or more employees nationwide.
December 31, 2020
April 1, 2020
All employers, regardless of size.
In response to COVID-19, a growing number of California cities and counties have issued expanded paid sick leave laws primarily targeting employers exempt from the federal Families First Coronavirus Response Act (FFCRA).
To our knowledge, and as of May 29, 2020:
California also issued a statewide April 1, 2020 Supplemental Paid Sick Leave Order (and mandatory poster) for food sector employers with 500 or more employees.
While this is a start for employers and employees affected by these new standards, steady change has been a constant in response to changing pandemic conditions. Please check the above links and other online resources for any updates.
See also:
For more information about these laws or other employment issues related to COVID-19, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
May 29, 2020
City Covered Employers Effective Date Expiration Date Other resources
On March 18, President Trump approved several coronavirus emergency measures for employees and employers, portions of theFamilies First Coronavirus Response Act (Act).
On March 18, President Trump approved several coronavirus emergency measures for employees and employers, portions of the Families First Coronavirus Response Act (Act).
Two sections enhance worker leave (or “furlough”) benefits. The Emergency Paid Sick Leave Act (PSL Act) provides a new nationwide coronavirus paid sick leave. Emergency Family and Medical Leave Expansion Act (EFMLA) amends the Family Medical Leave Act (FMLA) to provide additional paid family leave tailored to coronavirus issues. Both laws:
Emergency Paid Sick Leave Act
The PSL Act provides for 80 hours of paid sick leave for full-time employees and two weeks of average hours worked for part-time employees who cannot work or telework or because:
“(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
“(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
“(3) The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
“(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
“(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
“(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.”
The PSL Act provides:
For reasons (1), (2) or (3) above, the maximum amount of pay is $511/day and $5,110 total. For reasons (4), (5) or (6) above, the max is two-thirds of the employee’s regular rate or the highest applicable state, federal, or local minimum wage, to a maximum of $200/day and $2,000 total.
An employer’s failure to provide such benefits is a violation of the minimum wage provisions of the Fair Labor Standards Act (FLSA) and may be penalized accordingly.
While the PSL Act lacks California’s required listing of available leave benefits on pay stubs, best practice would be to add an appropriate entry in any event.
Emergency Family and Medical Leave Act
The EFMLA amends the FMLA for the coronavirus emergency.
The first 10 days of coronavirus FMLA leave is unpaid, but an employee may use any paid vacation, sick, medical or personal leave during this time.
While FMLA leave is ordinarily unpaid, the EFMLA requires that coronavirus-related FMLA leave is paid after the 10 work days of leave and up to caps of $200/day and a $10,000 total (daily benefit rate linked to worker’s usual compensation levels). Any remaining qualified leave will be unpaid up to the worker’s return deadline required for reinstatement.
In addition to existing grounds for a FMLA leave, the EFMLA permits leave for an employee to care for a minor child because school or child care has been closed or where a child care provider is unavailable because of a declared COVID-19 public health emergency.
Eligibility only requires 30 calendar days employment prior to the leave. An employee must provide advance notice if the need for the leave is foreseeable.
The EFMLA requires reinstatement to the same or an equivalent position, but not if the company has fewer than 25 employees or the position no longer exists due to intervening economic conditions or other operating changes caused by the public health emergency. If there is no equivalent position, the employer must make reasonable efforts to contact the employee if one becomes available. The restoration obligation is essentially for one year subject to two alternate calculation rules.
Federal Tax Credits for Employers
While the employer benefit obligations may be significant, new tax rules create a 100% wash by employment tax credits up to the leave amounts paid.
See also:
For more information about these laws or other employment issues related to coronavirus, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
Tim Bowles
March 23, 2020
New Paid Sick Leave, Family Leave and Tax Credits Effective April 2, 2020
As reported in “Federal Coronavirus Workplace Relief,” the March 18Families First Coronavirus Response Act (FFCRA)contains two nationwide employee leave laws,the Emergency Paid Sick Leave Act (PSL Act)and theEmergency Family and Medical Leave Expansion Act (EFMLA). In essence and applicable to businesses with fewer than 500 employees:
As reported in “Federal Coronavirus Workplace Relief,” the March 18 Families First Coronavirus Response Act (FFCRA) contains two nationwide employee leave laws, the Emergency Paid Sick Leave Act (PSL Act) and the Emergency Family and Medical Leave Expansion Act (EFMLA). In essence and applicable to businesses with fewer than 500 employees:
Posting Requirements. Starting April 1, 2020, all covered employers are required to distribute and post the government’s FFCRA Employee Rights notice (pictured above) in a conspicuous place where employees can read it easily. For employees working remotely, best management practices should include promptly emailing each worker the notice link.
Resources for Workers and Employers. The Department of Labor Wage and Hour Division (DOL) has now created a COVID-19 and the American Workplace Portal to assist workers and employers in understanding employment related issues under COVID-19. The portal includes numerous resources:
See also:
For more information about these developments or other employment issues related to coronavirus, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Tim Bowles
April 1, 2020
The Coronavirus crisis has forced many employers to reduce or eliminate their work force for the foreseeable future.
The Coronavirus crisis has forced many employers to reduce or eliminate their work force for the foreseeable future.
Some employers are characterizing such action as a temporary “furlough.” Others are framing such action as a “lay off” for the time being, until the calamity passes. Yet, for California businesses forced to cut back under the current health emergency, is there really a difference between the two? Answer: it depends.
Typically, a “furloughed” worker: ● remains the company’s “active” employee (although not actually working); ● maintains his/her seniority; ● and, depending on the employer’s workplace policies and plans, continues to receive any applicable vacation/PTO benefits, health coverage, and retirement plan benefits.
On the other hand, an employee temporarily laid off is considered no longer with the company and must be formally reinstated with new hire paperwork. Unlike a “furloughed worker,” the laid-off employee must receive all final wages immediately on the last date of employment, including accrued unused vacation or paid time off (PTO) hours. An employer’s failure to do so triggers additional “waiting time penalties” until full wages are paid in an amount equal to the employee’s daily regular rate up to a total of 30 calendar days.
However, the California Division of Labor Standards Enforcement (DLSE) imposes one key requirement for an employer to maintain the distinction. Unless management specifies a “furloughed” worker’s return-to-work date that is within that person’s current pay period or within ten days, whichever is shorter, management must pay that employee all wages on his/her last day regardless of how the company characterizes the departure, furloughed or laid-off.
See also:
For further information on how to properly conduct furloughs or layoffs or any other Coronavirus workplace concerns, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
March 28, 2020
Furlough Versus Layoff: A Distinction Without a Difference?
On March 27, 2020, President Trump approved The Coronavirus Aid, Relief, and Economic Security (CARES Act), a $2 trillion relief package intended to protect small business from the economic impacts of...
On March 27, 2020, President Trump approved The Coronavirus Aid, Relief, and Economic Security (CARES Act), a $2 trillion relief package intended to protect small business from the economic impacts of COVID-19.
Some media have overstated CARES Act business loans as “free money” or “fully forgivable.” Enterprise owners should proceed with caution, do their homework, and not automatically assume any of these four loan types will be fully forgiven:
CARES Act Paycheck Protection Program (PPP). The PPP loan is intended to help small businesses keep their workers on the payroll. Treasury Department guidelines confirm collateral or personal guarantees are not required. The loan currently has a maturity of two years and a 1% interest rate. Applicants apply for the loan through a banking institution or credit union. Businesses receiving a PPP loan may not also claim Employee Retention Credits (i.e., tax-refundable credits equal to 50 percent of qualified wages paid after March 12, 2020 and before January 1, 2021 up to a specified maximum amount).
The Small Business Administration (SBA) will forgive a portion of the PPP loan proceeds if the business can retain or restore its average pre-pandemic number of employees and the money is used for payroll and most rent, mortgage interest and/or utilities expenses over the eight weeks from loan funding. The SBA has announced it will publish further guidance on the loan forgiveness component in the coming week or so.
These links provide further information on the PPP program, leading to application forms:
Economic Injury Disaster Loan (EIDL). Small businesses that apply for an EIDL loan can request an immediate advance of up to $10,000 to offset a temporary loss of revenue. Applicants may apply directly on the SBA’s website. The loan advance does not have to be repaid even if the loan is denied. However, if the business also obtains a PPP, the PPP loan forgiveness will likely decrease by the $10,000 EIDL advance, and the EIDL and PPP loans may not be used for identical payroll expenses. Click on this link for more information:
Express Bridge Loan (EBL). The EBL permits small businesses with pre-existing SBA “Express Lender” relationships to quickly access up to $25,000 to help overcome the temporary loss of revenue. For example, if an enterprise urgently needs cash while waiting for EIDL approval and disbursement, it may qualify for this bridge loan, to be repaid in full or in part by the EIDL loan proceeds. For more information, please click here.
SBA 7(a) Loans (Standard and Express Loans). This is the SBA’s longstanding program for providing small businesses with financial assistance. Please click on this link for more information.
Best practices include:
See also:
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
April 14, 2020
Overview of CARES Act Small Business Loans
The evolving COVID-19 crisis is driving many employers to the difficult decisions of reducing hours or laying off employees.
The evolving COVID-19 crisis is driving many employers to the difficult decisions of reducing hours or laying off employees.
California has in turn relaxed the unemployment insurance (UI) access and qualification standards significantly. This includes the governor’s elimination of the usual seven-day waiting period upon application. Further, if the employer would offer to rehire within the coming two weeks if conditions permitted, the workers need not show the EDD that they are actively looking for other work in order to qualify. Eligibility still requires employees to remain able, available and ready to work. See, EDD – Coronavirus 2019 (COVID-19) and EDD Unemployment Eligibility.
An employer who knows layoffs will only last two weeks or less can offer employees special short-term “reduced earnings” benefits by issuing an Form DE 2063 to each affected worker. See also, that form’s completion instructions. To be eligible, the employee’s gross earnings after deducting the first $25 or 25% of the total earnings must be less than her/his weekly UI benefit amount. If the employee is then not reinstated within those two weeks, he or she would have to apply regularly for UI benefits.
California employers seeking a flexible alternative to layoffs may apply for the EDD’s Work Sharing Program (WPS), permitting management to retain their workers by reducing hours and partially offsetting the reduced wages with UI benefits.
The WPS guide permits the employer to determine which employees will participate and to rotate who shall have reduced hours and wages each week. The employer can also determine which week(s) will have such hour and wage reductions.
See also:
For further information on unemployment insurance benefits or any other Coronavirus workplace concerns, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
March 26, 2020
The Coronavirus Outbreak and California Unemployment Benefits
As of April 7,all but five states (the Dakotas, Nebraska, Iowa, and Arkansas) have some form of COVID-19 “safer at home” orders in place. For those businesses permitted or directed to stay open as par...
As of April 7, all but five states (the Dakotas, Nebraska, Iowa, and Arkansas) have some form of COVID-19 “safer at home” orders in place. For those businesses permitted or directed to stay open as part of the 16 federally-designated “critical infrastructure” sectors, management faces the critical responsibility of balancing production with protection.
While government entities hastily continue to issue voluminous guidelines on an operating employer’s do’s and don’ts (see, Infection Protection, What Employers Can Ask in a Pandemic, “Infection Article,” March 25, 2020), overlapping federal, state and local agencies are thus far answering the most sensitive questions differently, if at all. Thus, it’s all the more important that management promptly adopt and apply policy that reflects sound judgment under these unprecedented conditions.
Those policies should address requirements for the more-stringent isolation of confirmed and suspected COVID-19 cases and the less-severe quarantine of those with exposure, actual or possible, to such cases.
Who Must Be Isolated from a Still-Operating Company?: All government levels acknowledge that an individual who has, “may have” or is “likely to have” COVID-19 should follow stringent isolation guidelines. For instance, Los Angeles County Department of Public Health (LACDPH) “Home Isolation Instructions” include a strict “stay home” standard, separation from one’s family and pets at home, avoiding shared bedding, eating utensils, etc.
However, just who is an isolation candidate will remain vague as long as guidance from the Centers for Disease Control is indefinite on the full range of COVID-19 symptoms. As of March 24, the CDC acknowledged: “Limited information is available to characterize the spectrum of clinical illness associated with coronavirus disease 2019 (COVID-19) … Most patients with confirmed COVID-19 have developed fever (may be subjective or confirmed) and/or symptoms of acute respiratory illness (e.g., cough, difficulty breathing).” Emphasis supplied.
For lack of any definitive list, best employer practice would include a written protocol which lists qualifying symptoms for isolation as those published by an official source, whether or not such COVID-19 symptoms overlap with other ailments such as cold, flu or allergies. See, e.g., the Kansas Department of Health and Environment comparison chart. (Note that the CDC currently publishes only a generic chart comparing “flu” and “common cold,” nothing as yet for COVID-19 comparison.)
Who Must Be Quarantined from an Operating Company?: All government levels concur that a person who has been in “close contact” with another who has, “may have” or is “likely to have” COVID-19 should follow somewhat less stringent quarantine guidelines. The LACDPH “Home Quarantine Guidance” includes staying home except for required medical care for 14 days.
However, just who is a quarantine candidate depends on which government guidance one choses to rely upon for the definition of “close contact.”
As of yesterday, April 7, the CDC “close contact” definition is: “(a) being within approximately 6 feet (2 meters) of a COVID-19 case for a prolonged period of time; close contact can occur while caring for, living with, visiting, or sharing a health care waiting area or room with a COVID-19 case; or (b) having direct contact with infectious secretions of a COVID-19 case (e.g., being coughed on). Emphasis supplied. This directive defines neither “approximately” nor “prolonged.”
The LACDPH “close contact” definition is: “(a) being within six feet for more than ten minutes; or (b) unprotected direct contact to secretions or excretions (for example, sneeze, cough, sweat) of a person diagnosed or who are likely to have COVID-19.” Emphasis supplied. However, this LA county directive fails to explain whether that “more than ten minutes” is precise time down to one second beyond ten minutes or is ten-minutes consecutive, cumulative, or both.
For lack of any definite, consistent “close contact” standard from the government, best employer practice would include a written protocol which “errs” on the side of caution, i.e., once there is any question of contact within six feet for anything other than a fleeting pass-by, judgment should be exercised in the favor of quarantine.
What Must Operating Companies Do to Limit Spread After a Worker’s COVID-19 Diagnosis or Symptoms?: As explained in the Infection Article, the extraordinary current circumstances have led the Equal Employment Opportunity Commission (EEOC) to re-issue and update a guidance greatly relaxing employer prohibitions on inquiries on worker illness symptoms and related conditions. However, once management of a still-operating business is on notice of an employee who must isolate or quarantine, the question of who and how to ask for co-worker “close contacts” is one that even the EEOC has not yet progressed to address.
The issue is how far an employer can or should go to notify and protect other workers and their families of possible workplace exposure to the disease notwithstanding the privacy rights of the worker afflicted with COVID-19 or its reported symptoms. For lack of government direction to date, best practice would include a written protocol that seeks the subject worker’s written consent: (a) to disclose to management all fellow employees with whom he/she has had close contact while having any COVID-19 symptoms; and (b) to management’s identification of that employee in its inquiries to company employees to determine who, if any, have had such close contact with the person.
See also:
Our firm is currently advising a wide range of employer clients on the development of critical policies and procedures that enable continued delivery of essential goods and services while protecting workers from unnecessary exposure to possible COVID-19 infection. For more information, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Tim Bowles
April 8, 2020
Key Protection Protocols for an Essential Industry Employee’s COVID-19 Diagnosis/SymptomsLimited information is available to characterize the spectrum of clinical illness associated with coronavirus disease 2019 (COVID-19)approximatelyfor a prolonged period of timewithinfor more than ten minutes
The U.S. Equal Employment Opportunity Commission’s (EEOC)June 17 update of COVID-related guidelines (June 17 Update)offers first-time protocols for the management of aged 65-plus workers in pandemic t...
The U.S. Equal Employment Opportunity Commission’s (EEOC) June 17 update of COVID-related guidelines (June 17 Update) offers first-time protocols for the management of aged 65-plus workers in pandemic times under the Age Discrimination in Employment Act (ADEA).
COVID-19’s unprecedented circumstances have led the EEOC to loosen many of its established restrictions against employer intrusions into worker illness symptoms and medical care otherwise dictated by Americans with Disabilities Act (ADA) and other anti-discrimination laws. See, Infection Protection, What Employers Can Ask in a Pandemic (March 25, 2020).
On the other hand, the agency has issued unequivocal reminders that pandemic conditions are not license for unlawful national origin or race discrimination or harassment, e.g., unequal or hostile treatment of Asian workers on the pretext that COVID-19 is a “Chinese” disease or the like.
Taking the CDC’s cue that 8 out of 10 COVID-19-related deaths reported in the United States have been among adults aged 65 years and older, the EEOC’s June 17 Update reminds employers they may not exclude “older adults” from the workplace just because they are reported to be more vulnerable to the pandemic’s ill effects.
“The ADEA would prohibit a covered employer [15 or more on payroll] from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.”
As the ADEA only protects those aged 40-plus against discrimination relative to people younger than 40, the June 17 Update advises that ADEA does not prohibit employers from providing 65-plus employees “flexibility” to work relative to other older workers protected by the ADEA “even if it results in [those] workers ages 40-64 being treated less favorably based on age in comparison.”
The June 17 Update recognizes that no individual is entitled to reasonable accommodation due to his/her age but continues: “Workers age 65 or older also may have medical conditions that bring them under the protection of the ADA as individuals with disabilities. As such, they may request reasonable accommodation for their disability as opposed to their age.” Emphasis supplied.
Thus best management practices should include careful attention to older worker requests to remain on or return to the job and to documenting proper deliberation and decision.
See also:
For more information, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Tim Bowles
July 24, 2020
Expanded Federal Pandemic Guidelines Allow Favorable Treatment for Aged 65-Plus Personnel