Employment & Labor

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Let me start with a toast. A toast to the Department of Labor, which was thrust into a spotlight it didn’t seek. After Congress hastily cobbled together a bunch of confusing words on paper providing many American workers with a modest amount of paid sick leave and amending the FMLA to do the same, DOL was tasked with making sense of Congress’ ramblings in a matter of days. Almost immediately, DOL started issuing FAQs (FAQs 1, FAQs 2, and FAQs 3) to help employers and employees better understand the expectations of the Families First Coronavirus Response…
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…
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On April 1, 2020, the Department of Labor released a temporary rule issuing regulations under the Families First Coronavirus Response Act (FFCRA) effective immediately through December 31, 2020. Employers who have been wrestling with compliance with the FFCRA’s paid leave provisions will recognize much of the material in these regulations from the DOL’s informal guidance or from the CARES Act’s amendments to the FFCRA*. The regulations also include some helpful clarification:…
The Occupational Safety and Health Act (“OSH Act”), requires employers to satisfy the safety and health standards and regulations issued and enforced either by the Occupational Safety and Health Administration (“OSHA”) or by an OSHA-approved State Plan. In addition, the OSH Act’s General Duty Clause, https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=3359&p_table=OSHACT, obliges employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm. OSHA-approved State Plans may have standards, regulations and enforcement policies that differ from OSHA’s, but they must achieve results at least as effective as OSHA’s. (To see which states have such State…
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On April 1, 2020, the US Department of Labor DOL published a 124-page “Temporary Rule” providing much-needed guidance on the emergency leave law entitlements under the Family First Coronavirus Response Act (FFCRA).  Importantly, the rule includes instructions on an important exemption that may help struggling small employers opt out of part of the law. Congress passed the FFCRA in March 2020 in part to help American workers cope with the economic disruption and health effects of the COVID-19 pandemic.  The FFCRA offers two types of paid leave: (A) up to 80 hours emergency sick leave; and (B) longer-term paid family…
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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…
This article is intended to be accessible and comprehensible. It is not all-encompassing and does not contain all the terms nor all the context. We highly recommend reaching out to your attorney, CPA, or financial advisor to get advice on your unique situation before applying for any relief listed in this article. Additionally, remember that we are not experts in health or policy and make no guarantees as to the accuracy or timeliness of the details on this page. This page is for informational purposes only. See our full COVID-19 disclaimer for more. If your business has hit trouble because…
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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…
The Fish Law Firm filed a Charge of Discrimination with the Chicago office of the National Labor Relations Board.  The Charge was filed by a nurse who worked at Mercy Hospital in Chicago who alleges wrongful termination in a dispute involving a face mask & her concern over COVID-19 exposure.  She alleges that she was instructed to remove a protective mask that she purchased on-line at Amazon for her own protection in working on the front line with persons potentially exposed to COVID-19.  She alleges she complained to management about the need for protective masks and she was fired shortly…
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Late yesterday, the Internal Revenue Service released detailed FAQs outlining the documentation employers can require to substantiate an employee’s need for emergency paid sick leave (EPSL) and emergency paid FMLA (FMLA+).  The IRS also detailed the documents that must be maintained to obtain tax credits for EPSL and FMLA+ payments. Employee Request for Paid Leave The process for requesting EPSL or FMLA+ starts – as a leave request always does – with the employee. iiiiiiIn its guidance, the IRS made clear that the employee must first submit a written request for leave that includes: The employee’s name; The date or…
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Contributed by Beverly Alfon, March 31, 2020 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…
Synopsis: America’s Top COVID-19 Legal Experts, Brad Smith and Shawn Biery Will Provide a Second Free Webinar for Our Readers, Clients and Potential Clients. Editor’s comment: The first webinar on this topic made national WC news and was a giant hit with the folks who participated. Please consider joining in this 2d webinar with your thoughts, comments and thinking caps on. Please also note/remember the defense team at KCB&A never rests—we are working hard and helping to defend our clients on a 24/7 basis in this crisis. We are happy to accept new assignments across the five states we defend…
So far you have two big tasks on your list today, Tuesday, March 31, that I highly recommend you do ASAP in this order:   1) Apply for the SBA Disaster Loan. This is how you get the $10,000 grant from the CARES Act: Apply for a loan Request a $10,000 advance to provide immediate economic relief. Funds are supposed to be released within 3 days of the request and will not have to be repaid. You can apply online here: https://covid19relief.sba.gov/#/ We recommend that you apply fast. We’ve heard rumors that funds are limited and are first come,…
Contributed by John Hayes, March 31, 2020 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 Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”) has been signed into law.  A significant part of this legislation provides financial assistance to small businesses by means of the “Paycheck Protection Program.”   This program will provide small businesses with loans which can be forgiven, in whole or part, based upon the borrower’s willingness and ability to maintain its pre-crisis level of employment.  The program generally applies to businesses with 500 or fewer employees. The maximum amount a company can borrow is the lesser or $10,000,000 or the amount determined based on a formula of approximately 2.5 times…