Employment Law Update: HR 748, Coronavirus Aid, Relief, and Economic Security Act (CARES)

Mar 30, 2020

HR 748, Coronavirus Aid, Relief, and Economic Security Act (CARES)

Here is the third major piece of federal legislation enacted to address the coronavirus pandemic. Below are highlights of the new law that may affect you, your businesses, and your employees now, soon, and later.

Now:
• Can defer paying fifty percent (50%) of Social Security payroll tax due for 2020 and 2021.
• Can immediately monetize tax losses.
• Extends the federal tax filing deadline to July 15.
• Foreclosure of federally-backed home mortgages blocked for at least 60 days.
• Evictions banned at properties connected to the federal government.

Soon:
• Small Business Administration (“SBA”) loans and grants that apply to businesses negatively affected by the coronavirus and Covid-19, including but not limited to, hotels, restaurants, and non-profits.
o Provides $350 billion in small business loans for businesses with less than 500 employees, including self-employed, to pay for payroll, rent, and utilities; loans become grants if loans are used as such (maximum loan of $10 million).
o Increases SBA Express loans amounts from $325,000 to $1 million and reduces time to receive loan.
o Increases eligibility for Economic Injury Disaster Loans (“EIDL”), including to sole proprietorships and private non-profits; removes requirement for loan guarantees on amounts less than $200,000; authorizes $10,000 advance when qualified and requested, which may not require repayment.
• Allocates $150 billion to support hospitals and healthcare workers; outlines accelerated payments for rural hospitals and those serving vulnerable populations (i.e., children’s hospitals) when elective procedures are suspended.
• Large employers can receive loans from the Secretary of the Treasury.
o $454 billion available, with conditions, including:
– Must keep 90% of workforce through September and no outsourcing or moving overseas for two years.
– May not break union agreements and must stay neutral if union attempts to unionize.
– Executive pay and benefits limited; no ability to repurchase stock or pay dividends.
• Tax rebate checks of $1200 per adult whose most recent Adjusted Gross Income is no more than $75,000 (filed singly), $112,500 (filed as head of household), or $150,000 (filed married jointly). Payment amount decreases as AGI increases above the limits. Qualifying adults will receive $500 per child under age 17 for whom a child tax credit was claimed on most recent taxes. This is a tax credit for 2020.
• Increased unemployment eligibility, maximum time to receive unemployment (39 weeks v. 26 weeks), payments increased by $600 per week. Freelance and contract workers may receive benefits.

Later:
• Fifty-percent (50%) employee retention tax credit against what employers pay in Social Security payroll taxes, up to $10,000 per employee.

Martin Browne attorneys are on hand to answer your questions and provide guidance on how to navigate these critical issues. Contact us at (937) 324-5541 or www.martinbrowne.com.

Employment Law: FFCRA Update and DOL

Mar 30, 2020

The Families First Coronavirus Response Act (“FFCRA” or the “Act”) takes effect this week.  The Act provides eligible employees with two (2) weeks of paid leave for qualifying absences and expanded FMLA leave to care for a child whose school or childcare provider is closed or unavailable for reasons related to COVID-19.   As a reminder, FFCRA provisions are temporary and apply only to qualifying absences that occur between April 1, 2020 and December 31, 2020.  The Act takes effect on April 1, 2020.   

Employers are required to post the FFCRA Notice Poster  on or before April 1, 2020.  The notice must be posted in a conspicuous location in the workplace and be accessible to employees working remotely.  Employers may satisfy the notice requirement by emailing or direct mailing the notice to remote workers or posting the notice on the company’s internal or external website.  Employees who are laid off or are on furlough are not required to receive a mailed/emailed copy of the notice. 

As we continue to wait for official regulations, the U.S. Department of Labor provided guidance through two (2) fact sheets titled Employee Paid Leave Rights and Employer Paid Leave Requirements.  It also issued three sets of Questions and Answers (1-59 total) to address some of the most pressing employer questions.  Specifically, we now have some clarity that:

• Employees are required to provide documentation to support their qualifying absence(s) and that employers must maintain that documentation to claim the tax credit.  See # 15-16.
• FFCRA leave is not available to employees on layoff or furlough or to make up for a reduced work schedule.  See # 23-28.
• Employees are entitled to a maximum of 12-weeks of FMLA, in a rolling 12-month period, and leave taken for traditional FMLA qualifying absences in the same time period counts against the entitlement.  See # 44-45.

The Q&A also provides some guidance on the employee’s ability to work or telework, that the use of intermittent FMLA for FFCRA reasons is at the employer’s discretion, and that a Shelter-in-Place or Stay at Home order is not the same as a qualifying quarantine or isolation order related to COVID-19. 

Qualifying Reasons for Leave Under the FFCRA

As a reminder, the qualifying reasons for leave under the FFCRA include an inability to work (or telework) because the employee:

1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
2. has been advised by a health care provider to self-quarantine related to COVID-19;
3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
4. is caring for an individual subject to an order described in (1) or self-quarantined as described in (2);
5. is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19; or
6. is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.  

Because the COVID-19 situation is dynamic and the news updates frequently, employers are encouraged to keep up with developments as new information is added or clarified.   According to the DOL, official FFCRA regulations will be issued sometime in April. 

Martin Browne, will continue to monitor these situations and provide updates as necessary. Our attorneys are on hand to answer your questions and provide guidance on how to navigate these critical issues.  Please contact Shannon Wahl, Randall Comer, Steve McCready, or any attorney in Martin Browne’s Labor & Employment Practice group.

Coronavirus Update – Ohio’s Stay at Home Order & The Families First Coronavirus Response Act

Mar 23, 2020

We continue to cope with the impact of COVID-19 on our lives and workplaces. Developments, updates, and new recommendations are occurring daily.

Ohio’s Stay at Home Order. To help combat the spread of COVID-19, the State of Ohio issued an order requiring all persons to stay at home unless engaged in essential work or activity. The order provides some guidance on the types of business and business activities deemed essential, and the safeguards employers should take when continuing essential work activity. The order will take effect on Monday, March 23, 2020 (tonight) at 11:59 p.m., and is currently scheduled to last until April 6, 2020. A copy of the order is available here.

The Families First Coronavirus Response Act – Takes Effect April 2, 2020
We are still waiting for official guidance from the U.S. Secretary of Labor to clarify details and address unanswered questions related to the temporary leave entitlements passed by Congress last week. Below is a current summary of the major provisions:

Emergency Paid Sick Leave – Covered Employers will be required to provide eligible full-time employees with two weeks (up to 80 hours) of paid sick leave for qualifying absences. Part time employees will be entitled to a pro-rata equivalent, based on their average hours worked.
• Emergency Paid Sick Leave for Self. Paid sick leave may be used when the employee is: (1) subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) experiencing symptoms of COVID-19 and seeking a medical diagnosis. Employees taking leave for this purpose will be paid at the employee’s regular rate of pay for the qualifying absences, not to exceed $511 per day ($5,110 in the aggregate).
• Emergency Paid Sick Leave to Care for Others. Employees may also use paid sick leave to care for an individual (it does not have to be a family member) who is: (1) subject to a Federal, State, or local quarantine or isolation order related to COVID-19; or (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. Paid sick leave may also be used to care for the employee’s child whose school is closed, or whose childcare provider is unavailable, due to COVID-19 precautions. Employees taking leave for these purposes will be paid two-thirds the employee’s regular rate of pay for the qualifying absences, not to exceed $200 per day ($2,000 in the aggregate).
• Paid sick leave under this program is in addition to any sick leave benefits the employer already provides.
• The employer may not require employees to use other available leave before using paid sick leave under this Act.
• Paid sick leave must be available for immediate use upon the effective date of the Act regardless of the employee’s length of service.
• Employers are prohibited from retaliating against employees who take leave in accordance with the Act.

Expanded FMLA Provisions – Covered Employers will be required to provide paid Emergency FMLA to employees who are unable to work (or telework) because the employee is caring for his/her child (18 years or younger) because the child’s school or place of care has been closed or the childcare provider is unavailable, due to a public health emergency. This is the only qualifying reason for Emergency FMLA.
• Employees are eligible for Emergency FMLA if they have worked for the employer for at least 30 days.
• The first 10 days of Emergency FMLA may be unpaid but the employee may substitute any accrued paid leave benefits available under the employer’s policies.
• After the first 10 days of unpaid FMLA, employees may receive paid Emergency FMLA leave for up to 10 weeks in an amount not less than two-thirds of the employee’s regular rate of pay based on the number of hours the employee would have otherwise worked.
• For employees who work part-time/varying schedules, the employer may average the number of hours the employee typically works per week over a six-month period to determine the amount of leave available.
• In all cases, the paid leave provision is capped at $200 per day and $10,000 in the aggregate.
• Employers that are health care providers or emergency responders may elect to exclude employees from this leave.
• Under traditional FMLA rules only employers with 50 or more employees are covered by the FMLA. Under these Emergency FMLA provisions, all government entities and employers with 500 or fewer employees are Covered Employers under the Act. The Act does provide some relief for small employers with less than 50 employees to seek an exclusion from the paid leave requirements if compliance would “jeopardize the viability of the business as a going concern.”

Tax Credits – The Act also provides for employer tax credits to help offset the costs of providing the mandated benefits. The credits shall be allowed against the tax imposed by section 3111(a) or 3221(a) of the Internal Revenue Code for each calendar quarter in an amount equal to 100% of qualified wages paid to employees, up to established limits.

Employers should note that the payments and requirements under the Act are temporary and will expire on December 31, 2020. Over the next few days and weeks, additional guidance and agency interpretations will be forthcoming. The Act calls for the Secretary of Labor to provide guidance and issue regulations related to the Act, including a model notice for employers to distribute and post.

State Unemployment Benefits
Governor DeWine issued orders providing for increased flexibility and access to unemployment benefits for employees who are out of work due to the virus. For example, Ohio has waived the one (1) week waiting period for COVID-19 related layoffs and modified the work search requirements for laid off workers subject to recall. Visit the Ohio Department of Job and Family Services’ website for additional information and frequently asked questions regarding the Coronavirus and Unemployment Insurance Benefits. To expedite unemployment claims, ODJFS requests that employers provide this special form to affected employees:
http://www.odjfs.state.oh.us/forms/num/JFS00671/pdf/.

Insurance Benefits & Grace Period. Many employers have questions regarding the impact of COVID-19-related layoffs on benefit eligibility and the deferral of premium payments for employer-sponsored health plans.

At a press conference on Friday, March 20, 2020, Lt. Governor Husted advised that the Ohio Department of Insurance (“ODI”) will be issuing an order for insurers in Ohio to allow employers to offer employees a grace period for insurance premiums and to allow employers to continue covering employees even if the employee would otherwise become ineligible for insurance because of a decrease in the hours worked a week.

A copy of the ODI Bulletin 2020-03, Health Insurance Coverage Flexibility for Ohio Employees, is available here.  Employers should contact their insurance carriers/brokers regarding the arrangements that are in place for providing continued coverage to laid-off employees and a grace period for insurance premiums.

Martin Browne, will continue to monitor these situations and provide updates as necessary. Our attorneys are on hand to answer your questions and provide guidance on how to navigate these critical issues. Please contact Shannon Wahl, Randall Comer, Steve McCready, or any attorney in Martin Browne’s Labor & Employment Practice group.