Employment, Labor & Benefits

As the COVID-19 outbreak continues to disrupt normal workplace operations, an increasing number of employers are facing the reality of employees testing positive for the virus – particularly in industries like healthcare, construction, transportation, or retail, where workers cannot necessarily telecommute. Employees may also report to work sick, or become sick at work, and show COVID-19 symptoms. Even though employers may be hoping for the best, it is best to have a plan for the worst. Employers should have clear plans and procedures in place to address confirmed or presumptive COVID-19 cases in the workplace, which will enable employers to take swift, appropriate actions to minimize risk for their employees and operations. The following are guidelines for steps to take in addressing these situations:

One important question the Families First Coronavirus Response Act (“FFCRA”) and other recent legislative changes raise for employers is how to track and account for employee leaves. While most employers already have systems in place to track employee absences, employers should review their pre-pandemic recordkeeping to account for the “new normal” and new laws. These updates are not only to account for the FFCRA and any other federal or state laws – including the potential application for tax credits – but also, just as importantly, in anticipation of the return to work of the employer’s workforce.

Facing the many challenges posed by the COVID-19 pandemic, employers are considering their obligations to their workforce in the event of a reduction in force related to COVID-19 (“COVID-19”). This post provides an overview of an employer’s WARN Act obligations in the event a COVID-19-related closure or reduction in force.

The U.S. Department of Labor (“DOL”) has released its 124-page temporary regulations of the Families First Coronavirus Response Act (“FFCRA”). Below we summarize the key takeaways from those regulations.

Beyond COVID-19’s devastating impact on public health is its second order effects on the U.S. and world economy. Businesses of all sizes need to trim costs. An obvious place to start is with contributions to 401(k) and other tax-qualified retirement plans. This post reviews the options for cost cutting available to employers under their defined contribution 401(k) and profit sharing plans.

The Equal Employment Opportunity Commission (EEOC) recently hosted a webinar in which the agency answered questions about the applicability of the Americans with Disabilities Act (ADA) and Title VII to COVID-19-related employment actions. This Q&A supplemented earlier guidance posted by the EEOC.

A timely and robust response to the COVID-19 virus demands the attention and resources of, and action by, federal and state regulators, employers, and individuals alike. The stakes could not be higher. State and local “shelter-in-place” orders have effectively, if not actually, resulted in widespread job losses for at least some indeterminate period of time.

As New York State announced that it had confirmed over 2,300 cases of the COVID-19 coronavirus, New York Governor Andrew Cuomo signed into law new requirements for New York State employees affected by the virus.  The new law was swiftly enacted in light of the urgent public health and economic crises facing the state, and goes into effect immediately.  It mandates that New York employers offer paid sick leave and job protections for workers quarantined as a result of the coronavirus outbreak.

On March 23, 2020, the Department of Labor (“DOL”) issued guidance regarding the Families First Coronavirus Response Act, which goes into effect on April 2, 2020. Here are the takeaways from the guidance.

Congress has now passed the CORONAVIRUS AID, RELIEF AND ECONOMIC SECURITY ACT OR CARES ACT – Federal government’s Phase III response to the health and economic impacts related to the COVID-19 pandemic. President Trump has pledged to sign the Act into law immediately.

Given the possible health impacts of COVID-19, maintaining access to health care and insurance coverage is front of the mind for just about everyone. Continuation coverage under COBRA offers employees a route to continue job-based coverage in the event of job loss or reduction of hours.

New York State issued guidance on March 20th detailing answers to many frequently asked questions about the newly implemented COVID-19 quarantine leave law. We summarized the key components of the emergency law, which was enacted on March 18, 2020 and became effective immediately, in a previous blog post. In short, employers are immediately obligated to provide certain paid/unpaid leave (with duration and pay status varying based on the employer’s size), job protection, and expanded paid family leave and disability benefits to employees who are subject to a government-issued order of mandatory or precautionary quarantine or isolation due to COVID-19.

This morning, Massachusetts Governor Baker issued Covid Order No. 13 which mandates that, starting Tuesday, March 24th at 12 P.M., all non-essential businesses and other organizations “shall close their physical workplaces and facilities (“brick-and-mortar premises”) to workers, customers, and the public,” due to evolving spread of COVID-19 in Massachusetts. This directive also orders that, in furtherance of Massachusetts’s COVID-19 response efforts, all non-essential businesses and organizations “are encouraged to continue operations where they are able to operate through remote means that do not require worker, customers, or the public to enter or appear at the brick-and-mortar premises closed by this Order.”

The Office of Federal Contract Compliance Programs (OFCCP) announced that for the three month period from March 17, 2020 to June 17, 2020, it will provide a temporary exemption to certain federal contracting requirements.  The exemption is related to work under federal construction and service/supply contracts to provide COVID-19 relief. 

As the United States continues to develop its response to the COVID-19 pandemic, thousands of members of the National Guard will be activated to help deal with the threat.  Last week, Massachusetts Governor Charlie Baker activated 2,000 of the state’s National Guardspeople to aid the COVID-19 fight. As states assess how to use the National Guard to assist with the current state of emergency, service members will be called on to serve in increasing numbers.

Late Thursday evening California Governor Gavin Newsom issued Executive Order N-33-20 (the “Order”), which directs all California residents to stay home in light of the developing COVID-19 public health crisis. The Order states that except as necessary to continue the operations of businesses in the 16 “Critical Infrastructure” industries, all residents should leave their residence only as necessary for food or medical needs.

401(k) plans must, by law, limit the circumstances under which plan money can be withdrawn by active employees. However, 401(k) plans can (and most do) allow in-service withdrawals in the event of an employee’s financial hardship. The COVID-19 pandemic is guaranteed to have financial repercussions for many 401(k) participants, and hardship distributions may provide a financial bridge to better times. The post summarizes the hardship distribution rules to help 401(k) plan sponsors prepare for an uptick in requests. It should be noted that the hardship distribution rules changed in 2018 and 2019, so employers are advised to confirm that they are familiar with the most current rules.

President Trump signed the Families First Coronavirus Response Act into law late Wednesday night.  We summarize the enacted version below (which replaces our analysis of an earlier version the House passed, which it since amended).  The law goes into effect into effect April 2, 2020 and will remain in place until the end of the year. 

As part of the continuing effort to respond to the COVID-19 pandemic, Governor Newsom has issued an Executive Order temporarily modifying the California WARN Act requirements for employers engaging in mass layoffs.