Schlossberg

Business Lawyers for Business People

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Schlossberg, LLC is committed to our clients and our community and will remain open virtually, with a limited physical presence at our Braintree and Newton offices. We are available by telephone and email, and you should not hesitate to contact us for anything legal. We are following all CDC guidelines and have limited client and vendor contact. During this crisis, we have been providing ongoing services to help clients and have seen an uptick in employment law matters and financing, both traditional and emergency. The below is a selection of answers to commonly asked employment law questions, current through the date listed below as well as digests of many of the new laws just passed by Congress. This is general information only and we can consult with you individually as you require. As we get more information regarding how your (and our) business may be affected, we will post it on this page. We hope that the medical fallout is minimized and wish all of you good health during these trying times.

April 3, 2020.

UPDATED PAYCHECK PROTECTION LOAN APPLICATION AND RULES — APPLICATIONS ARE BEING ACCEPTED TODAY!

April 1, 2020.

FEDERAL FORGIVABLE LOANS AVAILABLE THIS FRIDAY, 4/3 — SBA PAYCHECK PROTECTION PROGRAM 7(A) LOANS INFORMATION UPDATE

March 26, 2020.

WHAT BUSINESS OWNERS SHOULD KNOW ABOUT THE SBA 7(A) LOAN PROGRAM EXPANSION UNDER THE CARES ACT

FAMILIES FIRST CORONA RESPONSE ACT UPDATE

March 23, 2020.

Governor Baker has issued a stay at home order affecting all Massachusetts residents and workers in non-essential businesses.

Here is the link to the order to see if your business is covered:

https://www.mass.gov/doc/covid-19-essential-services/download

Please email or call us with any questions about whether your business is covered and what next steps to take.

March 17, 2020.

The information provided is subject to change as employers, the Commonwealth and the federal government navigate a response to the COVID-19 virus.
Specifically, keep in mind the following:
  • To assist individuals who cannot work due to the impact of COVID-19, Governor Baker’s administration is filing emergency legislation that will allow new unemployment claims to be paid more quickly by waiving the one week waiting period for unemployment benefits. The Executive Office of Labor and Workforce Development and Division of Unemployment Assistance are also filing emergency regulations that will allow people impacted by COVID-19 to collect unemployment in expanded circumstances, including in the event of a temporary workplace shutdown. For more information on the availability of unemployment assistance, see below.

  • The House passed a version of the Families First Coronavirus Response Act. Before it becomes effective, the Senate has to approve the bill and then send it to President Trump to sign, but employers should be aware that as written it creates paid leave under the Family and Medical Leave Act in certain circumstances relating to COVID-19 and creates an Emergency Paid Sick Leave Act. As written, it also includes provisions for tax credits for the expanded, paid FMLA and paid Emergency Sick Leave.

FREQUENTLY ASKED QUESTIONS:

Can an employee stay home under Family and Medical Leave Act (the “FMLA”) to avoid getting COVID-19?

The FMLA protects eligible employees who are incapacitated by a serious health condition, as may be the case with, for example, the flu where complications arise, or who are needed to care for covered family members who are incapacitated by a serious health condition. Leave taken by an employee for the purpose of avoiding exposure would not be protected under the FMLA.

May an employer encourage or require employees to work remotely as an infection-control strategy?

Yes. You may either encourage or require employees to work remotely as an infection-control or prevention strategy. Remote work alternatives may also be used as a reasonable accommodation under the Americans with Disabilities Act.

Whether an employer chooses to require or encourage remote work, or is forced to temporarily close a business and temporarily lay off some employees (discussed below), employers must keep in mind federal and state laws prohibiting discrimination in the workplace on the basis of race, religion, national origin, gender, gender identity, sexual orientation, age (over 40), disability, genetics, or military status apply.

Are employers obligated to pay employees for all scheduled hours even if the employees work only a partial week because the employer’s business closed?

It depends.

The federal Fair Labor Standards Act (the “FLSA”) generally applies to hours actually worked. It does not require employers who are unable to provide work to non-exempt employees to pay them for hours the employees would have otherwise worked.

However, non-exempt employees paid on a “fluctuating-workweek” basis under the FLSA normally must be paid their full fluctuating-workweek salaries for every workweek in which they perform any work, with few exceptions.

Generally exempt, salaried employees must receive their full salary in any week in which they perform any work, subject to very limited exceptions such as might be the case when the employer is open for business but the employee decides to stay home for the day and performs no work. See below for more information.

May employers charge time missed to vacation and leave balances?

Generally, yes, employers may require the use of vacation/paid time off (“PTO”) and restrict its use, subject to the provisions of the employer’s current PTO policies and any employment contract or collective bargaining agreement.

Refer to DOL guidance HERE regarding exempt salaried employees. Generally exempt, salaried employees must receive their full salary in any week in which they perform any work, subject to very limited exceptions. An employee will not be considered paid “on a salary basis” if deductions from the predetermined compensation are made for absences occasioned by the office closure during a week in which the employee performs any work. Therefore, a private employer may direct exempt staff to take vacation or debit their leave bank account in the case of an office closure, whether for a full or partial day, provided the employees receive in payment an amount equal to their guaranteed salary. In the same scenario, an exempt employee who has no accrued benefits in the leave bank account, or has limited accrued leave and the reduction would result in a negative balance in the leave bank account, still must receive the employee’s guaranteed salary for any absence(s) occasioned by the office closure in order to remain exempt.

What are employers’ obligations to employees in the event of a temporary layoff or business closure?

Employers should treat employees as if they have been separated for employment and provide a last paycheck paid through the date of business shutdown or temporary layoff together with information on how to apply for DUA benefits (available HERE) and continuation of health coverage under COBRA or Massachusetts mini-COBRA.

If you intend that the business shutdown or layoff is temporary, for instance that work will resume or the employee will be recalled within the four-week window discussed above, (unlike permanent separation) offer to pay out accrued, unused vacation time to the affected employee at the time of layoff. If the employee does not accept and banks that time, and if the separation subsequently becomes permanent, pay the employee the unused, accrued vacation time.

Will employees whose employers are shutdown temporarily be eligible for unemployment assistance?

The following information is provided by the Commonwealth of Massachusetts and is subject to change. For more information from state agencies, click HERE.

“Under the DOL guidance, DUA may now pay unemployment benefits if a worker is quarantined due to an order by a civil authority or medical professional or leaves employment due to reasonable risk of exposure or infection or to care for a family member and does not intend to or is not allowed to return to work. The worker need not provide medical documentation and need only be available for work when and as able.

To assist individuals who cannot work due to the impact of COVID-19, the Administration is filing emergency legislation that will allow new claims to be paid more quickly by waiving the one week waiting period for unemployment benefits.

The Executive Office of Labor and Workforce Development and DUA are also filing emergency regulations that will allow people impacted by COVID-19 to collect unemployment in the following circumstances:

  • The workplace is shut down and expects to reopen in four or fewer weeks. Workers must remain in contact with their employer and be available for any work their employer may have for them that they are able to do, but do not otherwise need to be looking for work.
  • An employer may extend the period of the shut-down to eight weeks, and the employees will remain eligible for the longer period under the same conditions described above.
  • If necessary, DUA may extend these time periods.

Employers who are impacted by COVID-19 may request up to a 60-day grace period to file quarterly reports and pay contributions.

The pending federal legislation proposes further relief including additional money for unemployment benefits, and relief to employers for charges related to unemployment benefits paid due to COVID-19.”

What happens to group health plan coverage if employees are not working and unable to pay their share of premiums?

Generally, employees will not be considered eligible for group health insurance if they are not employed and group health plan coverage will cease when an employee’s share of premiums is not timely paid.

Exceptions may be made in this current scenario and employers should discuss with their insurance carrier to see what options are available or if the carrier is willing to keep coverage in place at least temporarily while this evolving pandemic is sorted out. Employees should be made aware if they will be expected to pay past-due premiums when the business reopens.

Do employers have notice and reporting obligations in the event of a temporary layoff or business closure?

Certain employers may be subject to notice obligations under the federal WARN Act and Massachusetts state law. The federal WARN Acts provides a specific exception to notice period requirements when layoffs occur due to unforeseeable business circumstances but this exception is limited, and employers must still provide as much notice as is practicable and a brief statement on the basis for reducing the notification period.

Whether or not the current situation will fall within the exemption is yet to be seen and employers should be aware there are stiff penalties for noncompliance. If you think you may be a covered employer under WARN or state law and expect to experience a business shutdown or a layoff, please contact us.