WELCOME The presentation will begin at 12 p.m. New HR Laws During - - PowerPoint PPT Presentation

WELCOME

The presentation will begin at 12 p.m.

New HR Laws During Coronavirus Response

Brought to you by the University of St. Thomas: Schulze School of Entrepreneurship Small Business Development Center Family Business Center https://link.stthomas.edu/businesssupportseries

COVID-19 New Employment Laws

March 31, 2020 @ Noon CDT

About Kate

• Management-side Employment

Attorney & HR Consultant

• Human Resources Officer for the U.S.

Department of State in Jerusalem & Zambia

• Started tHRive Law & Consulting
• Training, policies, investigations
• kbischoff@thrivelawconsulting.com

Families First Coronavirus Response Act

For employers with fewer than 500 employees…

• Expansion of the Family & Medical

Leave Act through December 2020

• Emergency Paid Sick Leave
• Effective April 1, 2020

Fewer than 500 Employees

• The date on which the employee takes the paid sick or leave
• If you’ve got 505 now, employee is NOT eligible
• If you drop below 500, employee IS eligible
• INCLUDES part-time & full-time employees
• Include anyone out on leave
• Any “joint employees” including those from an agency
• Independent contractors are NOT included
• If multiple subsidiaries:
• Common management
• Common ownership
• Common control/interchange of employees

Emergency Paid Sick Leave

• Employer with fewer than 500 employees
• No 30-day requirement for this leave, employees are eligible as
• f day 1
• Non-federal public sector
• Any employee is immediately eligible for paid sick leave
• Full-time employees get a maximum 80 hours at their regular rate
• Part-time employees get the number of hours the employee regularly

works over a two-week period

• In addition to any PTO/sick you already offer, including

unlimited paid time off

• No credit for any time off prior to April 1

Emergency Sick Leave Reasons

• 1. Received an isolation or quarantine order related to COVID-19
• 2. Advised by their health care provider to self-quarantine
• 3. Experiencing symptoms of COVID-19 & seeking diagnosis
• 4. Caring for a family member who is quarantining or subject to

an isolation order

• 5. Caring for a son or daughter who can’t be in school or daycare

due to COVID-19

• 6. Employee is experiencing substantially similar conditions

How Much?

• The regular rate of pay is the average over a period of up to six

months prior to the first date of the leave

• Puts a cap on amounts
• For reasons 1-3 (employee’s own conditions or government ordered),

employee paid leave is their regular rate up to $511 per day or $5,110 total

• For reasons 4-6 (caring for others or catchall), employee paid leave is

their regular rate up to $200 per day or $2,000 total

• May use withholdings you’ve collected but have not yet paid.
• Talk with tax professional

Expanded Family & Medical Leave Act

• Employers with fewer than 500 employees
• Employee must have worked for you for 30 days
• 12 weeks of leave
• Unable to work (or telework) due to school/daycare closure
• The first two weeks are unpaid (see emergency paid time off)
• THEN, remaining ten weeks are paid out at 2/3rd of employee’s

pay (again maximum of $200 per day or $10,000 total)

• Talk with a tax professional

Specific Employers

• Employers under with fewer than 50 employees in a 75-mile

radius – you can’t get sued under this expanded FMLA

• Some guidance from Department Of Labor
• Definition of health care provider is massive
• Definition of first responder is massive
• Expecting additional regulations shortly

Small Employers Exception

• If providing the leave would require spending that would exceed

available business revenues & mean closure

• If providing the leave would result in substantial risk to the financial,

health, or operational capabilities of the business because of the specialized skills, knowledge, or responsibilities

• If providing the leave would mean that there are not sufficient

workers who are able, willing & qualified & who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave & these labor or services are needed for the small business to operate at a minimal capacity

Scenario – Sick Dude

• James is in Accounting
• His live-in girlfriend is sick & told to self-isolate/quarantine
• He is going to too
• April 1: Has he called his healthcare provider to discuss

whether he should self-quarantine? If yes & healthcare provider says he should = Emergency paid emergency sick leave at $511 per day

Scenario – Sick Dude Continued

• What if we just lay him off instead of letting him self-

quarantine?

• If just him, there’s an argument that you’re trying to avoid paying him

emergency paid sick time, expanded FMLA, or public policy & you could get sued

• If he is part of a larger furlough, then probably okay

It’s HERE!

• Mikayla calls & tells you she’s positive
• Do I have to tell the other employees?
• NO. Her condition is confidential medical information under the ADA
• Don’t I have a moral obligation to tell them?
• Hopefully, you’ve already put into place strategies around physical

distancing

• Split shifts/every other day/WFH
• Increased hygiene
• Staying home if you’re sick
• Don’t I have to tell OSHA?
• OSHA should be THE LAST thing on your mind right now

Furlough vs. Lay-off Both are eligible for unemployment

Furlough

• Temporary lay-off with intent

to bring back

• May keep employee on health

insurance and/or other benefits

• No need to pay out accrued

but unearned PTO

Lay-off

• Permanent lay-
• ff/termination
• May keep employee on health

benefits and/or other benefits

• Pay out accrued but unused

PTO if practice/policy

SBA Loan: Paycheck Protection

• 500 or fewer employees
• Do not reduce payroll
• Up to $10 million
• Forgivable if all employees are kept on payroll for 8 weeks
• Maybe used for payroll, benefits, mortgage interest, rent,

utilities

• Talk with your banker & accountant
• Hurry, only $349 billion available

Discrimination & Harassment

• Asian Americans are reporting a spike in harassment
• Familial status is a protected class
• Temptation to use whether someone is eligible for the expanded FMLA

as a cost-savings measure

• Resist the temptation
• Likely to result in a discrimination suit after this – remember, a one-

year statute of limitations

How to Document This

• DO NOT ASK FOR DOCUMENTATION FROM A HEALTH

CARE PROVIDER!

• Talk with the employee
• Send an email to yourself regarding the conversation (date &

time stamped)

• Reason for the leave
• Name of the health care provider
• How you’ve calculated
• Can use our old friend, Xcel to track
• Share this information with the IRS/DOL
• We can sort the documentation later if needed

Unemployment Benefits

• Minnesota has expanded unemployment coverage
• For COVID-19 related furloughs/terminations, employees are eligible

as of day 1 – no waiting period

• Encouraged to apply online
• Congress massively increased benefits under the CARES Act
• Unemployment is NOT a bad thing
• Check with other states to determine if applicable to you

Shelter-In-Place Order

• Debate about whether the shelter-in-place is a state or local

quarantine or isolation order

• Some no, therefore it would NOT trigger the emergency paid leave
• Some say yes, therefore it WOULD trigger the emergency paid leave
• I believe a statewide order would trigger the emergency paid

leave for any organization still operating/employees still working

• “Essential” vs “nonessential” businesses
• Essential – Need the time off for the six reasons
• Nonessential – Off & eligible for unemployment due to loss of work

Shelter-In-Place Math

• April 1, 2020
• Governor orders (or has ordered) a shelter-in-place
• Employee has kids under the age of 18
• Business is STILL operating
• Emergency paid sick leave goes into effect: Regular rate up to

$511 a day for reasons 1-3, $200 a day for reasons 4-6

• Expanded FMLA goes into effect: 2/3rds regular rate rate up to

$200 a day to $10,000

• Total per employee: $15,110 if employee needs the full amount
• f time

Shelter-In-Place Math

• April 1, 2020
• Governor orders (or has ordered) a shelter-in-place
• Employee has no kids
• Business is STILL operating
• Emergency paid sick leave goes into effect: Regular rate up to

$511 a day to $5,110 for reasons 1-3, $200 for reasons 4-6

• Expanded FMLA does NOT apply

Shelter-In-Place Math

• April 1, 2020
• Governor orders (or has ordered) a shelter-in-place
• Employee has kids under the age of 18
• Business decides to close for time being
• Employees are furloughed
• No employee receives emergency sick leave or expanded FMLA

because there’s employment to take a leave from

Kate Bischoff (612) 361-7707 (320) 249-9269 @k8bischHRLaw kbischoff@thrivelawconsulting.com thrivelawconsulting.com

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Brought to you by the University of St. Thomas: Schulze School of Entrepreneurship Small Business Development Center Family Business Center https://link.stthomas.edu/businesssupportseries