More State Updates on Unemployment Benefits: Should Employees Who Have Reduced Hours or Are Laid Off Due to COVID-19 File for Unemployment?Last week we blogged about unemployment changes in Alabama, North Carolina, Texas, and Virginia and what employers who have to reduce hours or lay off folks should be considering for their employees. Since our original post we have gotten questions about other states in our region (some of which have taken action), so we figured we would share the information (which we have outlined for you below).

Mississippi:

Friday evening, March 20, 2020, the Mississippi Department of Employment Security (MDES) announced it was modifying the rules to allow workers to file unemployment claims if they are:

  • Quarantined by a doctor or governmental entity due to COVID-19;
  • Laid off or sent home from work without pay due to the COVID-19 avoidance measures;
  • Diagnosed with COVID-19; or
  • Caring for an immediate family member who has been diagnosed with COVID-19.

The press release did not indicate specific changes to the rules or whether other requirements would be waived. However, the release encouraged affected citizens to apply immediately online. Notably, MDES did not say that individuals who must miss work due to child care issues can file claims.

Arkansas:

The governor issued an order waiving the week waiting period for receiving unemployment benefits and the requirement to continue to search for work. Applicants are encouraged to use the website to file claims related to the virus. This waiver is in place for 30 days and only applies to businesses that are temporarily closed and plan to reopen.

Georgia:

The Georgia Department of Labor adopted emergency rules on March 19 and added an update on March 22 The process is now all on line and the gist of the changes are:

  • Work search requirements are waived for claims filed on or after March 14, 2020;
  • Employees unable to work because of the COVID-19 emergency who expect to be able to return to work after the emergency ceases will be eligible for benefits. This rule applies to all claims filed on or after March 14, 2020, and includes an individual:
  • “Quarantined or self-quarantined on the advice of a licensed medical professional;
  • Sixty (60) or more years of age;
  • With a recognized medical condition making that individual particularly susceptible to COVID-19;
  • Who is a caregiver and resides with someone identified in part (b) or (c) of this subparagraph; or
  • Who is a custodial parent or legal guardian of a minor whose school is closed due to COVID-19 and is unable to secure childcare.”
  • Georgia employers must file partial claims on behalf of their full or part time employees if they temporarily reduce work hours or there is a partial or total company shutdown caused by the COVID-19 emergency on or after March 15, 2020. Failure to do so could result in the employer having to reimburse GDOL for the full amount of unemployment insurance benefits paid to the employee.
  • An employer’s account may not be charged for “certain benefits paid for unemployment due to the COVID-19 public health emergency, including benefits paid on partial claims filed on line.”

Louisiana:

The Louisiana Workforce Commission issued a statement relaxing some of the rules on unemployment benefits. If a person has (1) work hours reduced due to COVID-19; (2) a workplace that is temporarily shut down due to the virus; or (3) been instructed to stay home due to the virus, then they can immediately file for unemployment benefits. The week waiting period and requirements for continued search for work have been waived for those categories of unemployment. There are stories about the website crashing, however, due to high usage.

South Carolina:

The South Carolina Department of Employment and Workforce issued guidance on unemployment benefits making clear that a loss of employment because of the COVID-19 emergency renders an employee eligible for benefits. The FAQ addresses employment losses caused by shut down, layoffs, or reduced hours. Finally, it also states that an employer’s account will not be charged for benefits paid because of a COVID-19 related shutdown.

Tennessee:

The Tennessee Department of Labor and Workforce Development has a page devoted to COVID-19 issues.  It also has FAQs posted that answer many questions and promises to be updated.  Employees who meet other requirements and are (1) unemployed because of a COVID-19 shutdown or (2) quarantined or directed to isolate by a medical professional or health authority, can apply for benefits.

What Is An “Essential” Business Under a Shutdown Order? It May Depend on Where You AreSeveral states and municipalities are moving to shutdowns in an attempt to curb the spread of COVID-19. These shelter-in-place orders usually allow “essential” businesses to stay open. Unfortunately, like much of the current COVID-19 situation, there are many questions about how those exceptions will be applied. While this is a moving target, this blog post shows how some states are using federal guidance to define the scope. It is important that you examine your own state or locality’s rulings, but this may help answer some questions. We hope to update with new information as it arises.

Generally, determining an essential business is a question of state and local law. However, many jurisdictions seem to be looking to federal guidance as a basis for making this determination. The Cybersecurity and Infrastructure Security Agency (CISA) recently issued “Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response,” which provides guidance to state, local, tribal, and territorial jurisdictions and the private sector on defining essential critical infrastructure workers. CISA executes the Secretary of Homeland Security’s responsibilities as assigned under the Homeland Security Act of 2002 to provide strategic guidance, promote a national unity of effort, and coordinate the overall federal effort to ensure the security and resilience of the nation’s critical infrastructure. The workers identified in this guidance generally represent the workforce related to the 16 critical infrastructure sectors’ assets, systems, and networks, whether physical or virtual, that are considered so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, national economic security, national public health or safety, or any combination thereof. These sectors include:

  1. Chemical
  2. Commercial facilities
  3. Communications
  4. Critical manufacturing
  5. Dams
  6. Defense industrial base
  7. Emergency services
  8. Energy
  9. Financial services
  10. Food and agriculture
  11. Government facilities
  12. Healthcare and public health
  13. Information technology
  14. Nuclear reactors, materials, and waste
  15. Transportation systems
  16. Water and wastewater systems

CISA’s guidance, however, is not binding, and states and local governments are establishing the specific parameters for their respective restrictions. Some states such as California are simply adopting CISA’s guidance. Similarly, Illinois and Louisiana have created their own definitions that reference and incorporate CISA’s guidance. Conversely, New York created its own definition and left open the option of seeking an opinion for businesses that have been excluded. Some states have gone as far as Pennsylvania to develop a spreadsheet of which specific businesses and industries are covered. Many other states and local governments have already closed bars, dine-in restaurants and other entertainment-related businesses with a view that these are non-essential businesses. Although different jurisdictions are taking different approaches, they are all making determinations about what is “essential” and “non-essential.”

Whether you are in a state or community with a pending shutdown order or one may be looming, it is important to be proactive and ensure that your critical business operations are deemed “essential.”  The government officials and staff that are making key decisions and determining the parameters of a shutdown may or may not fully understand your business or how critical it is. Accordingly, it is important that you engage your state and local officials and staff sooner rather than later.

Bradley can advise you on how these determinations apply to your business and counsel you on how to comply with them. The Governmental Affairs Practice Group is actively monitoring and engaging with Congress and the administration on these issues and is actively engaging state and local governments on behalf of clients to make sure their businesses are considered essential. Please contact Ryan Robichaux or David Stewart if you have any questions or would like to engage in the COVID-19 policy process.

What Employers Need to Know About U.S. House Bill 6201: Families First Coronavirus Response Act

Wednesday afternoon, the Senate passed the Families First Coronavirus Response Act, and President Trump signed it into law. The act contains several provisions that will significantly impact employers with fewer than 500 employees.

If this applies to you, your obligations become effective no later than April 2, 2020 – 15 days from the date of enactment – and will automatically expire on December 31, 2020. Within seven days (by March 25, 2020), you are required to post a notice informing your employees of their rights under this new law.

Obviously, no one has a crystal ball on how all of this will play out. What we can tell you is what the law says.

Here is a summary of select provisions of the bill that entitles qualified employees to job-protected paid sick leave and extended leave to care for children.

Family & Medical Leave Act Expansion

  • Employers with fewer than 500 employees will provide 12 weeks of potentially job-protected (see exception below) paid FMLA leave. The first 10 days may be paid by other relief (see below).
  • You do not have to provide this leave for healthcare providers (as that term is defined by the FMLA) or emergency responders.
  • During the first 10 days of this leave, your employees may use accrued personal or sick leave (including Emergency Paid Sick Leave under the new regulation outlined below), but you cannot require employees to do so.
  • To qualify for this expanded leave benefit, an employee must have been working for at least 30 calendar days. There is no minimum number of hours worked required.
  • This leave applies only for employees to care for a child whose school or daycare has been closed, or whose childcare provider is not available, as a result of the COVID-19 pandemic.
  • Leave is not available if employees are able to telework, but whether an employee is “able” to do so will undoubtedly be subject to debate (i.e., if the employer provides remote work capabilities but the employee’s children are at home).
  • The first 10 days are generally unpaid (but see the Emergency Paid Sick Leave requirement of 10 days of paid sick leave below).
      • After the first 10 days, you must compensate employees in an amount that is not less than two-thirds of the employee’s regular rate of pay for the remaining time of protected leave.
      • These pay requirements apply to only the COVID-19-related leave reasons listed above.
  • Employees are entitled to pay not to exceed two-thirds of the employee’s regular pay rate, not to exceed $200 per day or $10,000 total.
  • The U.S. Secretary of Labor may develop regulations to exempt small businesses (fewer than 50 employees) when the imposition of the new requirements would jeopardize the business as a going concern. Note that the normal FMLA exemption of employees who work at a site with fewer than 50 employees within a 75-mile radius does not apply here.

Restoration to Position

  • Employers with 25 or more employees must generally return employees to the same or substantially equivalent position under existing FMLA rules.
  • Employers with fewer than 25 employees are not required to return the employee to work if:
    • The position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions that affect employment and are caused by a public health emergency during the period of leave.
    • You (the employer) make a reasonable effort to restore the employee to a position equivalent to the position the employee held when leave commenced with equivalent benefits, pay and other terms and conditions of employment.
    • If your reasonable efforts fail, you make reasonable efforts to contact the employee if an equivalent position described above becomes available. This “contact period” remains in effect for a one-year period beginning on the earlier of: (a) the date on which the qualifying need related to a public health emergency concludes; or (b) the date that is 12 weeks after the date on which the employee’s leave commences.
  • The provisions are expected to go into effect on April 2, 2020, and they will expire on December 31, 2020.

Emergency Paid Sick Leave

  • Employers with fewer than 500 employees and government employers will be required to provide full-time employees with 10 days (80 hours) of paid sick leave for specific circumstances related to COVID-19, including:
      • Responding to quarantine requirements or recommendations;
      • Experiencing COVID-19 symptoms and seeking medical diagnosis;
      • Caring for family members who are responding to quarantine requirements or recommendations; and
      • Caring for children whose school or daycare is closed, or whose childcare provider is not otherwise available, due to COVID-19.
  • Part-time employees get paid sick leave equal to the number of hours they work, on a daily average, over the last six months (or if they have not been employed that long, based on the number of hours they would have reasonably expected to work).
  • Immediate use: Paid sick time is available for immediate use regardless of length of employment.
  • Rate of pay:
    • For absences related to the employee’s own condition, sick pay is the greater of the employee’s regular rate of pay or the applicable minimum wage, not to exceed $511 per day or $5,110 total.
    • For absences to care for others, sick pay is the greater of two-thirds of the employee’s regular rate or the applicable minimum wage, not to exceed $200 per day or $2,000 total.
  • You (employers) must post a notice informing employees of their rights to leave. The DOL will be creating a required posting.
  • The law expressly provides that it does not preempt existing state or local paid sick leave entitlements. Also, this paid sick time is in addition to time available under an employer’s existing policies.
  • The provisions will go into effect on April 2, 2020, and will expire on December 31, 2020.
  • A violation of the law is a minimum wage violation under the FLSA.

Collective Bargaining Agreements

  • Employers with employees subject to collective bargaining agreements may be able to fulfill their obligations to fund paid sick leave by contributing to an applicable multi-employer fund, so long as the employees subject to the agreement are able to secure pay from the fund consistent with hours worked under the collective bargaining agreement.

Employer Tax Credit

  • You will receive a refundable tax credit against your share of Social Security taxes equal to 100% of qualified paid sick leave wages paid for each calendar quarter under the Emergency Paid Sick Leave Act or the FMLA Expansion.

We will continue to provide guidance and updates on the status of these emergency measures as they rapidly evolve over the coming weeks.ages paid for each calendar quarter under the Emergency Paid Sick Leave Act or the FMLA Expansion.

It is important to note the proposed bill is not the final word on whether, when or how laws may change or how an employer’s obligations under these new regulations might change. There may be significant revisions to the current version of the bill or new regulations altogether, including new tax provisions, additional response measures, or new industry-specific relief provisions issued over the next several weeks.

We will continue to provide guidance and updates on the status of these emergency measures as they rapidly evolve over the coming weeks.