On Tuesday, April 7, 2020, the Chamber partnered with top employment attorneys from Stradley Ronon to host a virtual program to help regional employers understand a variety of employment issues related to the COVID-19 crisis, including new laws and legislation around paid leave, furlough, unemployment benefits, and employee privacy.
We’ve gathered some valuable takeaways for employers from each presentation to recap this program. If you would like to hear the presentations in their entirety, we invite you to watch the replay of the program.
Employer Responsibilities Under the Families First Coronavirus Response Act (FFCRA)
The FFCRA, effective Wednesday, April 1, 2020 through Thursday, December 31, 2020, applies to employers with 500 or fewer employees. It provides emergency paid sick time and emergency family and medical leave to employees for reasons related to COVID-19. Employers that provide these benefits are eligible for a refundable tax credit for related expenditures.
Emergency Paid Sick Time
For what reasons are employees eligible for emergency paid sick time?
- Personal COVID-19 Reasons, meaning the employee has been personally impacted by COVID-19 due to:
- A federal, state, or local quarantine or isolation order
- Self-quarantine that has been recommended by a health care provider
- The employee experiencing symptoms of COVID-19 and/or are awaiting diagnosis
- Family COVID-19 Reasons, meaning the employee’s family has been impacted by COVID-19 and the employee must:
- Care for a person subject to a quarantine or isolation order as recommended by a health care provider
- Care for a child under the age of 18 whose school or care provider is closed as a result of COVID-19
- Other COVID-19 Reasons specified by the federal government
What is the employee entitled to?
- 80 hours of paid leave (prorated for part-time employees)
- Pay at 100% of the employee’s regular pay rate (for Personal COVID-19 Reasons)
- Pay at two-thirds of the employee’s regular pay rate (for Family or Other COVID-19 Reasons)
Emergency Family & Medical Leave
Who is eligible for emergency family and medical leave?
Employees who have worked for the employer for a minimum of 30 days and who are unable to work or telework due to the need to care for a child under the age of 18 whose school or care provider is closed as a result of a public health pandemic
What is the employee entitled to?
The employee is entitled to 12 weeks of Emergency FMLA leave (included in, not in addition to, ordinary FMLA leave).
Considerations in Layoff & Furlough Decisions
A layoff signifies the end of the employer-employee relationship, meaning an end to all employee benefits. A furloughed employee takes unpaid leave, but maintains employee benefits, such as health insurance.
Are employees that have been furloughed on or after April 1, 2020 (the effective date of the FFCRA) eligible to receive paid sick leave or expanded family and medical leave?
No. However, employees may be eligible for unemployment insurance benefits.
If an employer worksite closes on or after April 1, 2020 (the effective date of the FFCRA) but plans to reopen in the future, are employees eligible to receive paid sick leave or expanded family and medical leave?
No, not while the worksite is closed. However, employees may be eligible for unemployment insurance benefits.
If an employer reduces an employee’s scheduled work hours, can the employee use paid sick leave or expanded family and medical leave for the hours that they are no longer scheduled to work?
No. This is because, if the employer has reduced an employee’s hours because it does not have work for the employee to perform, the employee is not prevented from working due to a COVID-19 qualifying reason and thus cannot use paid sick or expanded family and medical leave.
Employers can learn more about considerations related to layoffs and furloughs by visiting the U.S. Department of Labor’s Families First Coronavirus Response Act: Questions and Answers.
The Worker Adjustment and Retraining Notification (WARN) Act
The WARN Act applies to employers with 100 or more employees and requires employers to provide 60 days notice before qualified “plant closings” or “mass layoffs.” Exceptions to the WARN Act include faltering business, unforeseen business circumstances, or a natural disaster.
Government Orders: Business Closures & Stay-Home
As of Thursday, March 19, 2020, Pennsylvania’s Business Closure Order issued by Governor Tom Wolf requires:
- Closure of physical offices and facilities, unless the business is “life-sustaining” [determined by the business’ North American Industry Classification System (NAICS) code]
- As of Friday, April 3, 2020, at 5 p.m., non-life-sustaining businesses are no longer able to submit a waiver to continue operations.
As of Monday, March 23, 2020, Pennsylvania’s Stay-Home Order issued by Governor Tom Wolf:
- Dovetails with the aforementioned business closure order
- Has exceptions for unique issues, like employees needing to travel to fulfill a job function at a “life-sustaining” or emergency-response business
- Is enforced by warnings to those not in compliance, per the Pennsylvania State Police and other local and municipal authorities
As of Sunday, March 22, 2020, Philadelphia’s Stay-Home Order issued by Mayor Jim Kenney:
- Dovetails with the Governor’s orders, but provides added details for essential businesses and activities
Enhanced Unemployment Compensation Under the Stimulus (CARES) Act
What are the benefits under the CARES Act?
- Weekly benefit amount for the first four months is increased by $600
- Regular weekly amount (a maximum of $573 in Pennsylvania) in addition to the aforementioned $600 weekly benefit (for weeks 1-16)
- Immediate eligibility to apply for benefits
- Waived job search and registration requirements
- Extended benefits for an additional 13 weeks (Pennsylvania’s maximum 26-week benefit period has been extended to 39-weeks)
Who is eligible?
A larger portion of the workforce (even those who do not contribute to unemployment insurance):
- Gig workers
- Independent contractors
- Sole proprietors
- Partners in some partnerships
- Employees of religious entities
Who is ineligible?
- Individuals able to work remotely (telework)
- Individuals receiving paid sick leave
In addition to regular qualifying events for unemployment, such as termination, furlough, or a salary reduction, unemployment benefits are also available for various COVID-19 related reasons.
Issues Related to Safe Workplace Guidance & Employee Privacy
To ensure a safe workplace, employers should develop or modify existing COVID-19 response plans by:
- Assessing the risks to their workforce
- Establishing policies for social distancing
- Implementing staggered shifts
- Instituting remote work practices
- Encouraging best practices for hygiene in the workplace
- Creating a process to routinely clean the environment
The Equal Employment Opportunity Commission (EEOC) now allows for employee temperature screenings, which should be performed by the employer in a way that maintains confidentiality and minimizes unwarranted intrusion.
Employers should encourage employees to report if they or someone they live with has been diagnosed with COVID-19 or are experiencing symptoms.
Protecting Employee Privacy
If an employee informs an employer of a COVID-19 diagnosis, the employer should:
- Determine other employees the diagnosed employee was in close physical contact with
- Inform employees the diagnosed employee was in direct or indirect contact with, but not disclose the identity of the diagnosed employee
- Comply with reporting obligations to public health authorities
- Encourage but not require voluntary self-disclosure to the diagnosed employee by articulating the goal of protecting the employee and the public
- Maintain information in a confidential manner