In response to the COVID-19 pandemic and in an effort to prevent the spread of the virus, many employers are grappling with the need to immediately shut down operations. This raises the question whether employers must pay out all wages (including paid time off) when employees are temporarily laid off or furloughed. In California, they might.
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COVID-19 presents an array of new challenges and an abundance of uncertainty for employers. Notable among them, is the possibility that communities and states will begin to issue mandatory business closures and shelter in place orders. Interpreting and complying with these orders raises a host of issues for employers to consider.
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As reported on the Business Immigration Insights blog, employers, already dealing with a chaos of urgent-action items caused by COVID-19, must not overlook the stringent posting requirements under US Department of Labor (DOL) regulations for employees in H‑1B, H-1B1, and E-3 status, and for all employees, regardless of status, who are being sponsored for
The United States Senate today passed the Families First Coronavirus Response Act and sent it to President Trump’s desk. The President is expected to sign the bill into law this week.
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Employers in the difficult position of making workplace reductions because of COVID-19-related business losses should spare a moment for consideration of layoff notice obligations under the federal Worker Adjustment Retraining Notification Act of 1988, 29 U.S.C. § 2100 et seq. and its state counterparts (so-called “mini-WARN” laws). The “unforeseen business circumstances” exception in federal WARN and most analogous state laws may excuse strict compliance with notification requirements, but employers should take the time now to analyze the applicability of this exception rather than make assumptions about it.
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No doubt recognizing the unprecedented impact on business, Governor Gavin Newsom issued an Executive Order suspending the notice requirements under the California Worker Adjustment and Retraining Notification Act. Cal. Lab. Code §§ 1401(a), 1402, 1403. The Executive Order suspends existing law that could have otherwise required employers to provide 60 days’ notice before instituting mass layoffs, relocations, or terminations, and could potentially have imposed steep penalties on employers who failed to do so. Certain notice obligations remain, however, under the Executive Order.
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The House amended its Coronavirus Response Bill late on March 16, 2020 and sent it on to the Senate.
Paid Sick Leave Changes
The sick leave provisions of the bill remained largely intact, and would entitle employees of employers with fewer than 500 employees to take up to 80 hours of paid sick leave for coronavirus-related reasons, including required quarantining, caring for family members with the illness, or for emergency school closings. To review our initial summary of the bill, which includes discussion of portions of the bill that were unaffected by the technical amendments, click here. The amendments include a $511 daily cap for leave benefits for employees with their own personal coronavirus-related medical conditions, and a $200 cap for employees caring for others with such symptoms or for school closings.
Importantly, the sick leave amendments also allow the Secretary of Labor to grant exemptions to employers where the secretary determines that imposition of the paid sick leave requirements would “jeopardize the viability of the business as a going concern.” It also allows healthcare and emergency response employers to apply for exemptions from the Secretary of Labor so that the law would not apply to their employees.
COVID-19 has disrupted the global economy and employers may soon face the need to reduce expenses associated with exempt employees. Employers can place exempt employees on furlough, or, in some cases, reduce salaries and hours, without jeopardizing the FLSA exemption, but exceptions may need to be made for certain employees on work-authorized visas.
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In an effort to prevent the spread of Covid-19, many employers are permitting, and in some cases requiring, employees to work from home. One unforeseen consequence of requiring employees to work from home is some jurisdictions mandate that employers reimburse their employees for certain expenses incurred as a result of their employment. Accordingly, employers may be required to reimburse employees for reasonable expenses they incur for equipment and services necessary to work from home, such as cell phone, internet, and computer usage expenses.
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Workers’ compensation provides the exclusive remedy for injuries and illness that employees suffer arising out of and within the course of their employment. In the early stages of this pandemic, work-related travel to high impact countries or work-related exposure in a case that was being tracked by public health authorities provided support for work-related exposure. In health care settings, work-related exposure will likely be established when exposure to infected patients occurs. But in other settings and as the diseases spreads in the United States, the analysis about whether an illness is covered by workers’ compensation will be more difficult.
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