Category Archives: COVID-19

Better Late than Never: Missouri Issues State-wide “Stay At Home” Order

Contributed by Brian Wacker, April 4, 2020          

black and white gavel

This blog has previously reported on Governor Parsons’s resistance to issue a state-wide “Stay At Home” Order in Missouri in response to the COVID-19 pandemic.  He had previously issued a “Social Distancing” Order, effective through April 6, 2020, with individual counties and municipalities left to issue their own Stay At Home Orders to fill the void.

Now that has changed. 

On Friday evening, the Governor announced that the State’s Department of Health & Human Services had issued a state-wide Order mandating that all Missourians “shall avoid leaving their homes or places of residence unless necessary.”  The details of the 3-page Order, which is effective beginning on April 6, 2020 and remains in effect through Friday, April 24, 2020, are as follows:

Individuals Are Ordered To Stay At Home

Missouri residents are to avoid leaving home, except to work, access food, prescriptions, health care or other necessities or to engage in outdoor activity.  And if they must leave for such purposes, they are required practice “social distancing.”  The Order does also carve out individuals leaving home to go to and from their place of worship, but again provided that “social distancing” guidelines are adhered to. 

Individuals are specifically prohibited from visiting nursing homes, long-term facilities and retirement homes unless to provide critical assistance. Finally, individuals are to avoid social gatherings of more than ten people. Restrictions on eating and drinking at bars, restaurants and food courts remain, but those businesses can remain open for drive-thru, pickup or delivery. 

If individuals do leave home subject to the above restrictions, the dictates of the prior “Social Distancing” Order remain in effect. 

Businesses Can Continue To Operate, Subject To Restrictions

Notably, the Order does not require any businesses to shutter. Instead, it places restrictions on businesses based on whether they employ individuals to perform “essential worker functions,” as defined by U.S. Department of Homeland Security’s guidance. 

This DHS Guidance includes functions of workers employed in the following fields:

  • healthcare/public health;
  • law enforcement, public safety and first responders;
  • food and agriculture;
  • energy;
  • water/wastewater;
  • transportation/logistics;
  • public works/infrastructure support;
  • communications & IT;
  • community and government-based operations;
  • hazardous materials;
  • financial services;
  • chemicals;
  • defense industrial base;
  • commercial facilities;
  • residence care and shelter services; and
  • hygiene products and services.

Given the wide range of fields above and the various workers defined under each by the DHS, Missouri businesses should study the DHS’ guidance in detail and seek legal guidance if there is any question as to whether employees qualify.

Businesses with employees performing “essential worker functions”

For businesses with employees meeting this DHS definition and which engage in retail sales to the public, they are required to limit the number of people in the retail locations as follows:

  • for retail locations with less than 10,000 square feet, 25% or less of the local fire or building code occupancy; or
  • for retail locations with more than 10,000 square feet, ten percent or less of the local fire or building code occupancy.

The Order exempts workers performing “essential worker functions” and whose job duties require contact with other people closer than 6 feet from “social distancing” requirements.  However, for any retail establishment remaining open, the Order requires “social distancing” to be practiced “including, but not limited to, when customers are standing in line.”

Businesses without employees performing “essential worker functions”

If a business does not have employees performing “essential worker functions,” then it is subject to the following restrictions:

  • gatherings of ten people in a single space at the same time are prohibited; and
  • individual workers are to maintain six feet between them, except when those workers are family members.

Businesses without employees performing “essential worker functions” can request a waiver from the gathering restrictions from the State’s Department of Economic Development.

Missouri Schools Remain Closed

The Order specifically declares that Missouri schools shall remain closed. 

However, subject to the individual and business restrictions above, daycares, childcare providers and schools can still provide child care for working families if they follow guidelines published by the Centers for Disease Control.

Local Orders Remain Effective

Finally, the Order is clear that while it is effective state-wide, local counties and municipalities may enact separate orders or regulations to help combat the COVID-19 Order, so long as they are not inconsistent with the Order.

US DOL Releases Families First Coronavirus Response Act (FFCRA) Temporary Regulations and Updates FAQ’s

Contributed by Sara Zorich, April 3, 2020

The US Department of Labor (DOL) has posted its temporary regulations regarding the Families First Coronavirus Response Act (FFCRA).  The DOL is scheduled to post its published version on April 6, 2020.  The new regulations include parts 826.10 – 826.160 of the federal code and set forth the compliance requirements for employers with less than 500 employees for both the Emergency Paid Sick Leave Act (EPSLA) and the Expanded Family and Medical Leave (EFMLEA).

Additionally, the DOL continues to update its FFCRA FAQ’s and FAQ’s regarding posting requirements. At the time of this publication, those FAQ’s were most recently updated on April 2, 2020.

Employers subject to the FFCRA paid leave provisions must comply with these new regulations no later than April 1, 2020.  The DOL has a limited stay of enforcement regarding FFCRA compliance until April 17, 2020; however, the DOL has indicated that once it fully enforces the FFCRA, it will retroactively enforce violations back until the effective date of April 1, 2020, if employers have not remedied the violations.

As a reminder, employers covered by the FFCRA must post the following poster in a conspicuous place on its premises which can be satisfied by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website. 

The FFCRA rules are complex and as COVID-19 stay in place orders, quarantines and directives change, those changes will impact an employer’s FFCRA compliance requirements.

DOL: FFCRA Leave Can Be Taken Intermittently By Agreement Of The Employee And Employer (In Some Circumstances)

Contributed by Brian Wacker, April 2, 2020

The Department of Labor has issued Temporary Regulations on the Families First Coronavirus Response Act (FFCRA) to address an issue already causing employers fits – namely, can employees use paid sick leave under the Emergency Paid Sick Leave Act (EPSLA) and expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA) intermittently?  

According to the DOL: it depends. 

The employer and employee must agree to intermittent leave.

First and foremost, the regulations are clear that “one basic condition” applies to all employees who seek to take leave under the FFRCA: “they and their employer must agree.” Without such an agreement, leave cannot be taken intermittently. While there is no requirement of a written agreement, it is advisable to have one.  Because the DOL has said that in the absence of a written agreement to intermittent leave, “there must be a clear and mutual understanding between the parties.”  In addition, the agreement must also be certain as to the increments of time in which the leave is taken intermittently. 

If the employer and employee agree to intermittent leave, when is it permissible under the FFCRA?

Intermittent leave is not permissible in all situations. 

If the employer and employee agree that the employee may telework (e.g., working from home), the employee is permitted to take intermittent leave (paid leave and/or expanded family or medical leave) in any agreed increment of time. This regulation is drafted intentionally broad to give employers flexibility to balance the needs of the teleworking employee and the “needs of the employer’s business.”

However, if an employee is still working at the employer’s jobsite, intermittent leave can only be taken “in circumstances where there is a minimal risk that the employee will spread COVID-19 to other employees at an employer’s worksite.” Therefore, the regulations allow an employer and employee reporting to a worksite to “agree that the employee may take paid sick leave or expanded family and medical leave intermittently solely to care for the employee’s son or daughter whose school or place of care is closed, or whose child care provider is unavailable, because of reasons related to COVID-19.” 

However, intermittent leave is prohibited for employees who report to an employer’s worksite – even if the employee and employer agree – if the leave it being taken for any of the following reasons:

  • because the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  • because the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • because the employee is experiencing symptoms of COVID-19 and is taking leave to obtain a medical diagnosis;
  • because the employee is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
  • because the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

According to the Regulations, in these situations, intermittent leave is prohibited due to the “unacceptably high risk that the employee might spread COVID-19 to other employees when reporting to the employer’s worksite.”  So once an employee starts taking leave for any of these reasons, she must continue to take it until either the entire amount of provided leave is taken or until she no longer has a qualifying reason to taken leave.

Finally, the Regulations clarified that when permissible intermittent leave is agreed to by the employer and employee, “only the amount of leave actually taken may be counted towards the employees leave entitlements.” This means that if an employee returns from leave prior to expiration of their leave entitlement under the FFCRA, they are still entitled to use the remaining leave entitlement for a separate qualifying reason and are not otherwise prohibited from doing so by the Intermittent Leave regulations.

Prior to the issuing the regulations, the DOL issued guidance on these issues, which is consistent with the regulations, which can be found on the DOL website.

WARN Act and its Implications for COVID-19 Layoffs and Furloughs

Contributed by John Hayes and Carlos Arévalo, April 1, 2020

gavel on white backgruound

The federal Worker Adjustment and Retraining Notification (WARN) Act and the patchwork state-law equivalents are often overlooked when employers are considering their options regarding potential layoffs or furloughs – either permanent or temporary. Employers should be cautioned that not abiding by the requirements of the WARN Act could lead to problems down the road.

The WARN Act requires employers with 100 or more employees to give an advance 60-day written notice to its displaced workers, certain third parties, and government bodies notice for a plant closing or mass layoff. A plant closing means the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss of 50 or more employees during a 30-day period. A mass layoff means a reduction in force that is not the result of a plant closing which results in either an employment loss of 500 or more employees, or an employment loss of at least 50 or more employees and at least 33% of the active workforce at the site during a 30-day period. This 30-day period may be increased to 90 days if there is a series of small employment loss events that do not individually meet the threshold numbers above. We should also note that part-time employees (those working less than 20 hours a week) and those who have worked less than 6 of the previous 12 months are excluded from the calculation of affected employees. Under federal WARN, temporary layoffs of less than 6 months are not counted as an employment loss. 

The DOL guidance on the WARN Act can be found on the DOL website.

Given the current circumstances, an advance 60-day notice will likely not be possible for most employers. The WARN Act contains three exceptions to the advance notice requirement, the applicable one currently mostly likely being the “unforeseen business circumstances” exception. While this exception may apply to COVID-19 — and this, the 60-day advance notice would then be excused, notice is still required to be given in the event of a plant closing or mass layoff. Also, as more time passes, the “unforeseen business circumstances” exception is likely weakened.

The available penalties under the WARN Act are not insignificant and include the possibility of potential class action suits. An employer who violates WARN is liable to each affected employee for an amount equal to back pay and benefits for the period of violation, up to 60 days. Moreover, an employer who fails to provide notice as required to a unit of local government is subject to a civil penalty not to exceed $500 for each day of violation. In any suit, the court, in its discretion, may allow the prevailing party a reasonable attorney’s fee as part of the costs.

While the above discusses the federal WARN Act, it is important to note that several states have their own “mini-WARN” laws that may impose different or more strict requirements, may not include the “unforeseen business circumstances” exception or other exceptions, may encompass a different employee count, and/or may consider temporary/short lay-offs as triggering notice requirements. For example, New York requires advance notice of 90 days. Illinois requires employers with 75 or more employees to give notice, as opposed to the 100-employee trigger under federal law.   

The Bottom Line: Out of an abundance of caution employers should consider sending out WARN notices to their employees, third parties (as applicable), and the relevant government authorities in the event of a plant closing, mass layoff or furlough, even if temporary. Any business contemplating closures or layoffs or furloughs (either long or short-term) of a significant number of employees should seek advice and counsel from competent employment and labor law counsel. The risks are just too great!

Employee Retention Credit NOW Available for Many Businesses Financially Impacted by COVID-19

Contributed by Meredith Murphy and Robert Jackson, April 1, 2020

dollar bills in hand

On March 31, 2020, the Treasury Department and the Internal Revenue Service launched the Employee Retention Credit, designed to encourage businesses to keep employees on their payroll. The refundable tax credit is 50 percent of up to $10,000 in wages paid by an eligible employer whose business has been financially impacted by COVID-19.

How to determine if your business qualifies for the Employee Retention Credit:

The credit is available to all employers regardless of size, including tax-exempt organizations. There are only two exceptions: state and local governments and their instrumentalities and small businesses which take Small Business Loans. If an employer takes an SBA loan under the CARES Act (for example, the Paycheck Protection Program, Economic Injury Disaster Loans, and other SBA loans) the employer is not eligible for the retention credit.

Qualifying employers must fall into one of two categories:

  1. The employer’s business is fully or partially suspended by government order due to COVID-19 during the calendar quarter.
  2. The employer’s gross receipts are below 50 percent of the comparable quarter in 2019. Once the employer’s gross receipts go above 80 percent of a comparable quarter in 2019 they no longer qualify after the end of that quarter.

These measures are calculated each calendar quarter.

Calculating your credit:

The amount of the credit is 50 percent of qualifying wages paid up to $10,000 in total. Wages paid after March 12, 2020, and before January 1, 2021 are eligible for the credit. Wages taken into account are not limited to cash payments, but also include a portion of the cost of employer provided health care.

Determining which wages qualify:

Qualifying wages are based on the average number of a business’s employees in 2019.

  • For employers with less than 100 employees: If the employer had 100 or fewer employees on average in 2019, the credit is based on wages paid to all employees, regardless if they worked or not. If the employees worked full time and were paid for full time work, the employer still receives the credit.
  • Employers with more than 100 employees:  If the employer had more than 100 employees on average in 2019, then the credit is allowed only for wages paid to employees who did not work during the calendar quarter.

Receiving your credit (perhaps the most important step):

Employers can be immediately reimbursed for the credit by reducing their required deposits of payroll taxes that have been withheld from employees’ wages by the amount of the credit.

Eligible employers will report their total qualified wages and the related health insurance costs for each quarter on their quarterly employment tax returns or Form 941 beginning with the second quarter.

If the employer’s employment tax deposits are not sufficient to cover the credit, the employer may receive an advance payment from the IRS by submitting Form 7200, Advance Payment of Employer Credits Due to COVID-19. Eligible employers can also request an advance of the Employee Retention Credit by submitting Form 7200.

Form 7200 can be found on the IRS website.  

Instructions for Form 7200 can also be found on the IRS website.   

It will be critically important that you determine if you will receive more aid using the Employee Retention Credit or using the Paycheck Protection Program, Economic Injury Disaster Loans and Loan Advance, SBA Debt Relief, and SBA Express Bridge Loans. You can learn more about those programs on the U.S. Small Business Administration website.

The Duty to Bargain During the COVID-19 Pandemic

Contributed by Beverly Alfon, March 31, 2020

Scales of Justice, Weight Scale, Balance.

Businesses with a unionized workforce need to consider whether their responses to the COVID-19 pandemic constitute unilateral changes under existing work terms and conditions. An employer’s duty to bargain in good faith with its employees’ union encompasses many obligations, including the duty to not make certain changes to work terms and conditions without bargaining with the union. While a union is not likely to bring an unfair labor practice charge against an employer for “benevolent” unilateral changes, a union generally has a solid basis to bring an unfair labor practice charge against an employer that initiates adverse actions such as furloughs and layoffs, without notice and an opportunity to bargain. 

Recognizing the “unprecedented situation” created by the COVID-19 pandemic, the National Labor Relations Board (NLRB) General Counsel (GC) issued a memorandum on March 27 to address its impact on the duty to bargain. The memorandum does not direct the NLRB’s regional offices to take any specific action, but it does summarize cases in which the Board previously considered the duty to bargain during emergencies. The cased cited in the memorandum involve unilateral changes ranging from implementation of a flu prevention policy to layoff/facility closure prompted by an abrupt reduction in an employer’s business volume. 

Bottom line

  • You need to evaluate the language of your CBA with the union in order to determine what is already covered by the agreement (including your Management Rights clause) to support the actions that you take in response to the pandemic.
  • If you make unilateral changes such as furloughs/layoffs – that are not already supported by the CBA – you must be ready to demonstrate that “economic exigencies compel[led] prompt action.” Currently, any exception to the duty to bargain before implementing unilateral change is limited to “extraordinary events which are an unforeseen occurrence, having a major economic effect requiring the company to take immediate action.”     
  • Keep in mind that failure to bargain with the union over the effects of the company’s decision to take the unilateral action, can also lead to another violation of the NLRA.

Does a “Shelter in Place” or “Stay at Home Order” Trigger Paid Leave under the FFCRA?

Contributed by John Hayes, March 31, 2020

Clock and cash

***Please see updated information on FFCRA regulations in our April 3, 2020 post.

A component of the recently passed Families First Coronavirus Response Act (FFCRA) requires covered employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 starting April 1. Additionally, many states and local governments have now mandated that non-essential businesses close and that its citizens stay at home, subject to certain exceptions, often referred to as Shelter in Place (SIP) or Stay at Home orders.

The question facing many employers now is whether these SIP orders trigger the paid leave requirements of the FFCRA.

The short answer is no.

On March 28, 2020 the U.S. Department of Labor (DOL) issued guidance to address, among other things, the FFCRA provisions related to paid sick leave or expanded medical leave, and whether employers are required to provide paid leave under its provisions if it is forced to close pursuant to SIP orders.  The specific questions that address the provisions for the closure of a worksite can be found on the DOL website and the relevant portions of the answers read as follows:

If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?

No. If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive.

If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?

If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive.

If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but tells me that it will reopen at some time in the future, can I receive paid sick leave or expanded family and medical leave?

No, not while your worksite is closed. If your employer closes your worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State, or local directive. If your employer reopens and you resume work, you would then be eligible for paid sick leave or expanded family and medical leave as warranted.

Bottom line: an employee is not eligible for the paid leave requirements of the FFCRA if their worksite closes down pursuant to an SIP order, or if it closes for any other reason, such as lack of business. However, employers should note that when they reopen and recall the affected employees to work, the recalled employees will be eligible for paid sick or family leave, if they meet the requirements under FFCRA.