Department of Labor Issues Regulations and Updates Guidance for Families First Coronavirus Response Act

On April 1, 2020, the U.S. Department of Labor (“DOL”) issued regulations for the Families First Coronavirus Response Act (“FFCRA”), which went into effect the same day.  The regulations are available here.

The majority of the content in the regulations is not new and simply repeats information that is also available in the DOL’s FAQs guidance (which has been updated several times since it was first posted).  The DOL’s FAQs are here, and our blog post highlighting key takeaways from the FAQs as initially posted is here.

The latest information for employers from the regulations and the updated FAQs includes:

Clarification of small business exemption.

  • Employers with fewer than 50 employees may assert they are exempt from providing emergency paid medical leave (“EPML”) or emergency paid sick leave (“EPSL”) to employees who miss work due to a school or childcare closure. (Note that there are numerous qualifying reasons to use EPSL, including when an employee has been advised to self-quarantine or is showing symptoms consistent with COVID-19 and seeking a medical diagnosis.  However, there is no exemption that will allow small employers to avoid providing EPSL altogether.)
  • To deny an employee EPML or EPSL as outlined above, an “authorized officer” of the small employer must determine that:
    • providing such leave would cause the employer’s expenses and financial obligations to exceed available business revenue and cause the employer to cease operating at a minimal capacity;
    • the absence of the employee(s) requesting such leave would pose a substantial risk to the financial health or operational capacity of the employer because of their specialized skills, knowledge of the business, or responsibilities; or
    • the employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services that the employee(s) requesting leave provide, and these labor or services are needed for the employer to operate at a minimal capacity.
  • Small employers are not required to formally “apply” for the exemption; rather, they must “document the facts and circumstances . . . justify[ing] [the] denial” of leave. The small business exemption does not require prior approval from the DOL, and neither the FFCRA nor the regulations create an express right for employees to challenge the employer’s determination that it qualifies.  Thus, it would appear that small employers have a great deal of discretion to determine whether they qualify for the exemption.
  • Small employers who assert the exemption must still post the FFCRA notice to employees.

Use of employer-provided paid time off during EPML.  After the first two workweeks of EPML, employers can require that employees take EPML concurrently with any employer-provided paid time off (such as vacation or personal leave) that would otherwise be available for employees to care for their children under the employer’s policies during their absence.  Employees can also elect to use employer-provided paid time off concurrently.  During the first two workweeks of EPML, employees may elect to use their employer-provided paid leave or EPSL, but the employer may not require them to do so. Continue Reading

UPDATED: BOLI Issues New Rule Providing for Emergency Exemption from Manufacturing Hours Limits

Current Oregon law grants two important rights to manufacturing employees: (1) they are entitled to overtime pay if they work more than 10 hours in a single work day (and can never work more than 13 hours in a day); and (2) they may not work more than 55 hours in a workweek unless they provide their written consent to work up to a maximum of 60 hours.  In response to the COVID-19 pandemic, the Oregon Bureau of Labor and Industries (“BOLI”) has adopted a new emergency rule that allows manufacturing employers to seek a partial exemption from these requirements as described below.

Under BOLI’s new rule, employers engaged in manufacturing products that “reasonably result in the preservation of life and property” during the coronavirus pandemic may seek the exemption.  (BOLI has also issued a FAQ to help employers determine whether they are making such products, among other guidance.)

Here is what BOLI had to say about what kinds of manufactured product will support the exemption:

“Manufacturers that are part of the supply chain for food or medical equipment and have seen increased demand during the pandemic are great examples. For example, garment factories producing medical personal protective equipment (PPE), scrubs, or gowns may be included, whereas a regular clothing manufacturer may not.” Continue Reading

OR-OSHA Announces Workplace Social Distancing Investigations

In the wake of an onslaught of employee complaints about social distancing in the workplace, the Oregon Occupational Health and Safety Administration (“OR-OSHA”) announced that it would begin workplace inspections in order to enforce the social distancing requirements imposed by Governor Brown’s March 23 Executive Order.  Our blog post describing the Executive Order is here, a link to a media article about OR-OSHA’s announcement is here, and a link to OR-OSHA resources regarding workplace safety during the COVID 19 pandemic is here.

Here are some general guidelines to keep in mind if OR-OSHA conducts an inspection at your workplace:

  • OR-OSHA has the legal authority to inspect workplaces for compliance with safety standards, with or without notice. This includes the right to enter the workplace “during working hours or at other reasonable times, within reasonable limits, and in a reasonable manner.”  What is “reasonable” will depend on the circumstances, but in general it means that investigators may access your facility during regular business hours and may inspect portions of the facility as much as necessary to determine whether sound safety practices are being followed.
  • The OR-OSHA investigator will generally begin the inspection by holding a short conference with the employer’s representative. This is why it is important now to plan ahead and designate your representative(s), who may or may not be the same individual(s) who are enforcing social distancing compliance with Governor Brown’s Executive Order, and prepare them for how to cooperate with OR-OSHA.  During the conference the investigator will present his/her credentials and explain the purpose and scope of the visit, request any records he/she intends to review, determine whether any personal protective equipment is necessary while touring the facility, and inform the employer of OR-OSHA’s right to speak to employees and take photographs or conduct sampling.
  • The employer is entitled to have a representative accompany the investigator during the inspection. Inspectors have the right to question employees confidentially without management representatives present.
  • At the conclusion of the inspection, the investigator will conduct a closing conference to discuss his/her findings and advise the employer of any violations and safety hazards that have been identified. The investigator will also discuss OR-OSHA’s remediation and enforcement plan, including items like timelines for correcting any hazards, possible penalties, and the employer’s appeal rights.

Continue Reading

UPDATE: Congress Passes Coronavirus Aid, Relief, and Economic Security Act

*a prior version of this post indicated the House vote was still pending. The House passed this legislation on March 27, 2020. 

Like you, we are closely monitoring the rapid developments caused by the COVID-19 pandemic. The latest is Congress passing the Coronavirus Aid, Relief, and Economic Security Act (or “CARES” Act). We focus below on the employment-related provisions of the Act, but encourage you to continue checking our COVID-19 Resource Hub for additional updates on other aspects of the Act.

Direct Payments to Individuals 

Under the Act, direct payments of $1,200 will be made to single individuals who earn $75,000 or less in adjusted gross income, and $2,400 to married couples who earn $150,000 or less in adjusted gross income, according to their 2018 tax returns or 2019 tax return if already filed.  There will be an additional $500 payment per child.  These payments scale down as income increases, phasing out entirely for individuals earning $99,000 and joint filers without children earning $198,000.

Increased Unemployment Benefits 

The Act also provides assistance to states to administer and expand unemployment benefits.  Continue Reading

Idaho’s Statewide Self-Isolation Order Is Now in Effect

At the direction of Governor Brad Little, the Director of the Idaho Department of Health and Welfare has issued an Order to Self-Isolate for the State of Idaho that became effective on March 25, 2020.  The Order is intended to respond to the ongoing COVID-19 public health emergency by ensuring the maximum number of people self-isolate in their places of residence while enabling essential services to continue.  The Order is effective until April 15, 2020.

Self-Isolation

The Idaho Self-Isolation Order provides that individuals within the state can leave their residence to engage in certain defined Essential Activities.  Essential Activities include the performance of “work providing essential services at an Essential Business.”  In addition, individuals may leave their self-isolation to provide services or to perform work necessary to operate and maintain Essential Infrastructure, which includes commercial construction and construction of housing, mining, refining, as well as various utility and transportation related services.  Essential Activities must comply with social distancing requirements.  Not surprisingly, individuals who perform Essential Government Functions are also excluded from the Order.

Essential Businesses

A lengthy list of businesses, services, and governmental and other related enterprises are defined by the Order as Essential Businesses.  The list includes grocery and other retail stores that sell products necessary to maintain the safety, sanitation and essential operation of residences.  Food cultivation, processing and other agricultural services, gas, auto repair and related facilities, banks, trades, media, educational and cleaning services are also included.  There are limitations placed on how restaurants may serve food (by take-out only), but bars are closed along with gyms and other indoor and outdoor recreational and sporting activities.  Employers are encouraged to consult the list of such Essential Businesses and consult with their attorney to determine if they are included or whether they “supply other Essential Businesses or Essential Government Functions.”  All businesses except Essential Businesses are required to cease all activities at facilities located in the state except for Minimum Basic Operations, which is defined to include actions to preserve the value of the business, process payroll and benefits, or maintain related functions, or if they facilitate employees working from home. Continue Reading

Required Notice of Rights Under the Families First Coronavirus Response Act

The Families First Coronavirus Response Act (“FFCRA”) requires private companies with fewer than 500 employees, along with most public employers regardless of size, to post a notice summarizing the benefits available under the new law and directs the Department of Labor to prepare and publish a model notice. The Department issued its model notice yesterday. A copy is available here. Although the FFCRA does not go into effect until April 1, 2020, our advice is to post the notice now.

In addition to a model notice, the Department published a helpful FAQ page, which is available here. Here are the highlights:

  • Covered employers are required to post the notice in conspicuous places, but “may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.” Given the number of employees working remotely electronic distribution may make sense. However, we still recommend posting a physical copy of the poster wherever you usually put legally required postings.
  • There may be revisions and updates to the model notice, in which case employers will need to take down the initial notice and replace it with the updated version.
  • Employers are not required to translate the notice into other languages. However, the Department is working on its own translations into an unspecified list of other languages.

We will continue to keep you posted on new developments regarding the FFCRA and other legal issues related to COVID-19. (You can also visit our COVID-19 resource hub for our previous alerts and guidance). In the meantime, please reach out to any of our attorneys with questions.

U.S. Department of Labor Updates Guidance on Families First Coronavirus Relief Act

The U.S. Department of Labor (“DOL”) has updated its guidance on the Families First Coronavirus Relief Act (“FFCRA”), which was signed into law on March 18, 2020.  (A summary of the law is here.)  Regulations are coming in April.  In the meantime, the DOL’s current resources available are:

  1. A tip sheet for employees
  2. A tip sheet for employers
  3. A Q&A

Issues addressed in the Q&A (many of which were addressed in our earlier FAQs) include:

Effective date of the FFCRA.  The FFCRA and its requirements go into effect on April 1, 2020.

Counting employees under the FFCRA.  In determining employee count, employers must examine whether, as of the time leave is to be taken, they employ fewer than 500 full- and part-time employees within the United States (including Washington, D.C. and any U.S. territory).  All employees must be counted, including temporary employees (even if they are jointly employed by another entity or supplied by a temporary agency) and employees on leave.

Typically, a corporation is considered to be a single employer.  If a corporation has an ownership interest in another corporation, the corporation must analyze whether the two corporations are joint employers under the Fair Labor Standards Act.  If the corporations are joint employers, all their common employees must be included in the employee count.

Finally, individual entities are usually separate employers unless they meet the integrated employer test under the Family and Medical Leave Act (in which case employees of all entities should be counted toward the 500-employee maximum).  This is a fact-intensive, case-by-case analysis.  Consult with your employment attorney if you have questions about whether your company is an integrated employer.

The FFCRA imposes a new sick leave requirement.  The DOL confirmed that employers cannot reduce an employee’s paid sick time entitlement under the FFCRA once it goes into effect.  In other words, the FFCRA imposes a new requirement on employers starting April 1, 2020 and any paid sick leave they provided before that date is not relevant when determining an employee’s entitlement to emergency paid sick leave.

Retroactivity of the FFCRA.  The FFCRA is not retroactive (in other words, employees who were laid off before April 1, 2020 are not entitled to emergency paid sick or medical leave).  Likewise, employers cannot receive a tax credit under the FFCRA for paid leave that was voluntarily provided prior to April 1.

Availability of FFCRA benefits for employer closures.  The DOL confirmed that when an employer closes a worksite (for lack of business or pursuant to a federal, state, or local government order), employees are not eligible to use emergency paid sick or medical leave under the FFCRA during the closure.  This is true even if the employer indicates that the worksite will reopen at some point in the future.  Employees impacted by closures may be eligible for unemployment. 

Availability of FFCRA benefits for employees who are laid off, furloughed, or have their hours reduced.  FFCRA benefits are available only to current employees.  Employees who are laid off or furloughed are no longer eligible for FFCRA benefits but may be eligible for unemployment.  Likewise, employees whose hours are reduced are not able to use FFCRA leave to make up the difference.

Intermittent FFCRA leave.  Employers may, but are not required to, permit employees who are teleworking to take emergency paid sick or medical leave intermittently, using any agreed-upon increment of time.  Employees who are not teleworking may also take emergency paid medical leave on an intermittent basis if their employer agrees, but they must take emergency paid sick leave in full-day increments. 

Supplementing pay for leave under the FFCRA.  Employers may, but are not required to, permit employees to use employer-provided paid time off benefits to supplement pay received during a period of FFCRA leave.  If an employer chooses to do so, however, it cannot require the employee to take the supplemental pay.  Furthermore, employers who choose to pay employees more than they are entitled to under the FFCRA (regardless of whether the supplemental pay comes from employer-provided paid time off benefits or some other source) cannot receive a tax credit in excess of the FFCRA’s statutory limits. 

Documentation for FFCRA leave.  Employers must require employees taking emergency paid sick or medical leave with “appropriate documentation” supporting their need for leave and retain that documentation for tax purposes.  Documentation should include the employee’s name, the qualifying reason for leave, the dates for which leave is requested, and a statement that the employee is unable to work or telework.  Employers should also retain documentation regarding the reason for the leave, which could range from an email from a child care provider, to a newspaper article stating that schools are closed, to a copy of the applicable government order. 

Temporary employee eligibility.  Any employee who has been on the employer’s payroll for at least 30 calendar days (whether as a temporary or regular employee) is eligible for emergency paid medical leave.  (All employees are eligible for emergency paid sick leave.)

Heath insurance continuation.  Employers must continue health coverage for employees taking emergency paid sick or medical leave on the same terms as if the employee was working.

We will continue providing updates as more information becomes available.  If you have questions in the meantime, contact your employment attorney.

Oregon Governor Announces “Stay Home” Order

Oregon Governor Kate Brown issued Executive Order 20-12, “Stay Home, Save Lives” (the “Order”), on March 23, 2020 to respond to the ongoing COVID-19 public health emergency.

The Order mandates closure, effective at 12:01 a.m. on March 24, 2020, of a list of businesses for which close personal contact is difficult or impossible to avoid, including most places of recreation, museums and galleries, social and private clubs, salons, spas, gyms and fitness studios, indoor and outdoor malls, cosmetic stores, furniture stores, jewelry shops, tattoo/piercing shops, theaters, and ski resorts.  The Oregon Health Authority also has authority to identify additional business closures that are necessary to slow the spread of COVID-19.  Restaurants and bars may remain open for take-out and delivery services only.

Retail businesses not specifically listed in the Order are also ordered closed unless the business designates an employee or officer to establish, implement, and enforce social distancing policies, consistent with guidance from the Oregon Health Authority.  This requirement does not apply to grocery stores and pharmacies; however, such businesses are encouraged to comply with social distancing guidelines.

All businesses and non-profits with offices in Oregon must arrange for employees to work from home to the maximum extent possible.  Work in offices is prohibited when work from home options are available, in light of position duties, availability of teleworking equipment, and network adequacy.  When work from home options are not available, businesses and non-profits must designate an employee or officer to establish, implement, and enforce social distancing policies, consistent with guidance from the Oregon Health Authority.

The Order also directs individuals to stay at home or at their place of residence to the extent possible, and prohibits all non-essential social and recreational gatherings, regardless of size, unless a distance of at least six feet between individuals can be maintained.  When individuals need to leave their place of residence, they must maintain social distance of at least six feet from any person who is not a member of their immediate household.  Individuals may go outside for recreational activities such as walking but must maintain appropriate social distance (six feet or more) at all times.  The Order also imposes restrictions on childcare facilities and outdoor recreation and travel.

Violation of the Order is a class C misdemeanor, with potential punishment of up to 30 days in jail and a $1,250 fine.

For advice on how the Order affects your business, please contact us.

California Governor Issues Statewide Lockdown

On March 19, 2020, California Governor Gavin Newsom issued an Executive Order ordering all California residents to stay at home due to the current public health crisis caused by COVID-19.  This Order exempts from its scope employees working in the following federally identified critical infrastructure sectors:

  • Communications
  • Chemical
  • Critical Manufacturing
  • Commercial Facilities
  • Dams
  • Defense Industrial Base
  • Emergency Services
  • Energy
  • Financial
  • Food & Agriculture
  • Government Facilities
  • Nuclear Reactors, Materials & Waste
  • Information Technology
  • Water
  • Transportation Systems
  • Healthcare & Public Health

To the extent your business does not operate in one of these 16 categories, you will likely be required to at least temporarily shut down.  In addition to administrative concerns related to an unplanned shut down, California employers must also be aware of their continued, albeit modified, obligations under the California WARN Act and the newly passed national Families First Coronavirus Response Act.

More information on the Critical Infrastructure Sectors can be found at: https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19.

Stay up to date with our coverage on the Stoel Rives Coronovirus (COVID) Resource Hub.

NLRB Postpones All Representation Elections Until At Least April 3

The National Labor Relations Board (“NLRB”) announced yesterday that all currently scheduled representation elections – including vote-by-mail elections—have been postponed until at least April 3, 2020 because of the ongoing COVID-19 crisis.  Here is what the NLRB had to say:

Due to the extraordinary circumstances related to the COVID-19 pandemic, the National Labor Relations Board today approved the suspension of all representation elections, including mail ballot elections, for the next two weeks effective immediately, through and including April 3, 2020.  Continue Reading

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