COVID-19: News and Updates |
| Special #28 - April 29, 2020 |
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Articles and Updates Today
- Paycheck Protection Program: Notice: PPP Resumed April 27, 2020 - The SBA resumed accepting Paycheck Protection Program applications from participating lenders on Monday, April 27, 2020
- Perry Chamber of Commerce : OPENING YOUR DOORS SAFELY PERRYGACHAMBER.COM/COVID-19 RESOURCES
- ¶46,900 Spotlighting potential coronavirus wage-and-hour woes — CONFERENCE COVERAGE, Apr. 29, 2020
- ¶46,896 Phase-four COVID-19 relief now law — NEW LAW, Apr. 28, 2020- ¶46,898 AFGE sets return-to-worksite preconditions amid coronavirus pandemic — FEDERAL NEWS, Apr. 28, 2020 - Georgia Department of Public Health COVID-19 Daily Status Report
* Note: If you have any employment law/HR topics or issues you would like to see us cover in the News and Updates please email us at chris@georgiaemployers.org.
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| | | Paycheck Protection Program
An SBA loan that helps businesses keep their workforce employed during the Coronavirus (COVID-19) crisis.
Notice: PPP Resumed April 27, 2020 - The SBA resumed accepting Paycheck Protection Program applications from participating lenders on Monday, April 27, 2020
More Links to the SBA Loan Information
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| | | OPENING YOUR DOORS SAFELY PERRYGACHAMBER.COM/COVID-19 RESOURCES | 478-987-1234
Operating within these parameters and deadlines, Georgia businesses must now commit to a methodicalapproach for re-starting the economy and ensuring recovery. This approach must work in tandem with federal, state, and local regulators and elected officials. As testing, treatment and tracing capacity is established, a gradual return to work should be coupled with a detailed business plan.
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| | | | ¶46,900 Spotlighting potential coronavirus wage-and-hour woes — CONFERENCE COVERAGE,
By Lisa Milam, J.D.
Apr. 29, 2020
Employers are forced to make difficult decisions, often at warp speed, as they operate during the pandemic and resulting economic downturn. But making tough decisions without consulting legal counsel can invite costly litigation, and wage and hour suits—particularly class actions—are among the most expensive for employers.
In a recent Seyfarth Shaw LLP webinar on "Litigation Trends in the Post COVID-19 World," Lynn A. Kappelman, a partner in the firm’s Boston office, discussed the wage-hour issues that arise as employers look to control payroll costs while maintaining operations, and also as they look ahead to reopening as the crisis abates. Kappelman followed up with Labor and Employment Law Daily about the common wage-hour traps that can befall employers during this unprecedented crisis.
"Plaintiff’s attorneys are already laser-focused on these issues," Kappelman cautions. "Many of them are already publishing on their web site FAQ’s and guidelines for potential plaintiffs who may have experienced any of these wage-hour class action traps."
Losing exempt status. The primary wage-hour risk with respect to exempt employees is losing the exempt classification—a misstep that can have longer-term consequences for wage-hour liability, including having to pay overtime going forward to these formerly exempt salaried employees.
Many employers have reduced employees’ pay across the board to spread the pain of forced belt-tightening. An employer that imposes a salary cut also must be careful not to reduce exempt employees’ pay below the minimum salary level. (The current FLSA salary threshold is $35,568 per year; the pay floor is higher in many states.).
Out of an abundance of fairness, an employer that imposes a 20-percent pay cut may want to reduce work hours accordingly, and implement a four-day workweek. However, to do so for exempt employees would run afoul of the FLSA’s salary-basis test. "It’s OK to reduce someone’s pay by 20 percent, but you can’t reduce their duties by a commensurate level, because you’ll undermine the salary basis, and lose the exemption," she explained.
"Here’s the scenario that has come up the most, though: When you furlough an exempt employee, then even if an employee works one hour during that week, they must get paid for the entire week. Furloughing exempt employees for anything less than a full week also carries a risk of violating the salary basis test," Kappelman noted. "If an employer furloughs an exempt employee on a Wednesday, it must pay the for the full week, or the employee will lose her exempt status. And you may very well see a class action for all those hours you didn’t pay folks during their workweek.
"What if you furlough an exempt employee, but you’re still calling her at home and asking her to respond to emails now and again? ‘Susie, can you tell me where we keep those files?’ Or ‘what’s our usual practice for doing such-and-such?’ In effect, Susie is on furlough, but if she’s answering emails, then she’s actually working, and therefore, she is entitled to pay for the entire week—even if she’s only answered an hour’s worth of emails that week" she said. "That may not be a lot of money for one person, but if that’s happening with a number of employees, those class actions can add up quickly.
Duties dilution is also a common pitfall, particularly as employers that have been forced to furlough part of their workforce call upon managerial staff to take on additional tasks. Consider a retail establishment. "Many exempt employees are now stocking shelves, working the register, sanitizing the workplace because there aren’t enough healthy employees to do the job. You have to be really careful. If an exempt employee performs more nonexempt work than management work, there is a danger that the employee’s primary duty is no longer managerial, which removes exempt status," Kappelman noted.
Off-the-clock claims. "The largest issue for nonexempt employees is that it will take them longer to prepare to work—cleaning and sanitizing the workspace, getting temperature-scanned, and donning PPE. Employers may make the mistake of not paying for that time," Kappelman said. "But employees generally must be paid for the time it takes to don and doff protective gear or work clothes. And again, unrecorded time for one person isn’t too costly, but unrecorded time for 100 or 1,000 employees can be quite a costly class action."
"In the COVID world, off-the-clock claims can arise in the context of screening," Kappelman noted. "The time an employee spends getting her temperature checked before she can start work may take only two minutes. But what if the employee has to stand in line for 30 minutes waiting to get temperature-checked? The employer will need to compensate her for that waiting time. What if she has to spend additional time now sanitizing her workspace, putting on face masks, cleaning face masks? Again, it’s probably not de minimis; it’s compensable."
Employers also must pay nonexempt employees for the time spent getting up to speed with post-COVID changes in the workplace. "There will be new ways of doing business post-COVID. For example, we may see there are no more pin-pads at checkout lanes, which means cashiers must train on contactless payment. They will need to train on new software, new equipment. That’s all compensable time."
State-law requirements. Kappelman also cautioned on state-specific class action traps. Meal and rest breaks, required under numerous state laws, will be impacted by the need for social distance. "Consider the employee who says she can’t take her break because she can’t sit in the break room and be socially distant, or says ‘you didn’t provide a safe space for me to eat lunch so I’m eating lunch at my desk but I keep getting interrupted because people think I’m on the clock.’ Or the employee who complains that he has to go eat in his car because you’ve cordoned off the lunchroom, and now there’s not enough time on his lunch hour to eat and also don and doff his PPE."
In many states, laws governing expense reimbursement will require an employer to reimburse anything purchased by employees attendant to remote work: cell phone, computer monitors, printers. For on-site employees, the costs of employee-supplied PPE may have to be reimbursed. Failure to pay these previously unanticipated expenses also invites class litigation, she notes.
In addition, employers faced with financial difficulties may be tempted to change their commission plans midstream. "Perhaps under the current plan, commissioned employees earn the commission as soon as the order comes in the door. Now 90 percent of your customers are suddenly cancelling their orders, and you decide you’ll pay out commissions when the customer order is delivered. That unilateral change means 90 percent of employee commissions which should have been due under the old commission plan and not due to the employee now. That’s really just a straightforward breach of contract claim, and it may give rise to a class action for failure to pay money earned under a commission plan," Kappelman cautioned. "Keep an eye on your commission plan, review it, and comply with it."
Wage nonpayment. The DOL’s Wage and Hour Division has noted an increase in complaints from workers who are simply not getting paid because the downturn has left their employers cash-strapped. Wage nonpayment is an obvious violation for which there is little opportunity to avoid liability.
"For states where the underpayment statute contains a private right of action, you may see private class actions, although the requirement to pay wages is so straightforward, I would expect these cases to settle quickly," Kappelman said. "Some state underpayment statutes do not contain a private right of action, so the appropriate state agencies would have to pursue these claims."
Class-action risks. COVID-19 and the adjustments that employers have made in response to the pandemic are rife with opportunity for the plaintiffs’ bar eager to bring class claims, which are faster, easier to pursue, and result in quick settlements. "Every industry is at risk," Kappelman said. "Even law firms can run afoul of the exempt salary basis and duties dilution issues, and nonexempt workers in every industry will need to deal with the time-recording issues involved with necessary changes to meal breaks, rest breaks, and donning and doffing PPE.
"I expect to see retail and hospitality hit the hardest, since their workforce is so public-facing and visible," Kappelman said. "And the return-to-work issues will be very similar for these groups of employees, putting employers at greater risk of classwide liability."
Kappelman also anticipates an uptick in independent contractor misclassification class actions. "Many COVID-related state and federal government orders group independent contractors and employees under the same umbrella for purposes of benefits, unemployment compensation, notice, and leave payments. As such, many employers followed suit, treating independent contractors like employees with respect to benefits coverage, leave payments, furloughs, and the like."
Heightening the danger is the fact that the COVID-related adjustments giving rise to the alleged wage-hour violations are based on sweeping policy decisions, making them particularly vulnerable to class treatment. "It may be easier to show commonality, for Rule 23 certification purposes, since everyone was affected at the same time by many of the same issues surrounding COVID shutdowns, and many employers issued companywide policies to address the virus," Kappelman warned.
"Having said that, the defense bar may have some arguments in the nationwide class cases that employee populations in different states were different, as each governor issued different guidance and the timing and scope of these shutdown orders varied by state."
For now, at least, the risk of litigation also varies by state. "We will see lawyers aggressively pursue these claims in any location with an active plaintiffs’ bar and substantial penalties for wage and hour violations," Kappelman cautioned. "We will see the first wave of post-COVID wage and hour class actions in California, Massachusetts, New York, and New Jersey. Plaintiffs’ counsel already have a playbook for these kinds of class claims in these states, and the laws in those jurisdictions allow for lucrative penalties." But employers elsewhere should anticipate that wage-hour class actions will spread.
Source: By Lisa Milam, J.D.
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| | | | ¶46,896 Phase-four COVID-19 relief now law — NEW LAW,
Apr. 28, 2020
From: GEA HR answers now
On April 23, the House approved Senate amendments to the Paycheck Protection Program and Health Care Enhancement Act (H.R. 266), by a 388-5 vote that saw one Democrat and four Republicans opposing the measure. The interim emergency coronavirus package is the fourth legislative response to the COVID-19 pandemic. The bill immediately moved to President Trump’s desk, where he signed it into law on April 24.
Health and Human Services. Title I of H.R. 266 gives the Department of Health and Human Services (HHS) $75 billion in funding to reimburse hospitals and health care providers for health care related expenses or lost revenues attributable to COVID-19, according to the House Democrats’ fact sheet. It also provides $25 billion to increase testing for COVID-19.
The Paycheck Protection Program and Health Care Enhancement Act also includes coronavirus testing requirements, directing HHS to:
Submit a report within 21 days on the number of cases, hospitalizations, and deaths related to COVID-19, including de-identified data disaggregated by race, ethnicity, age, sex, and geographic region, and other relevant factors of individuals tested for or diagnosed with COVID-19.
Within 30 days of enactment, submit to Congress a COVID-19 strategic testing plan, including assistance to states, localities, territories, tribes, tribal organizations, and urban Indian health organizations, to test for both active infection and prior exposure including hospital-based testing, high-complexity laboratory testing, point-of-care testing, mobile testing, and other settings.
Small Business Administration. In Title II, the legislation gives the Small Business Administration $2.1 billion to administer SBA programs funded in the bill. It also provides $50 billion in loan subsidies to fund about $350 billion in SBA Economic Injury Disaster Loans, and $10 billion for EIDL grants, which can be used for an advance of up to $10,000 on a disaster loan and do not need to be repaid.
"Urgent relief is needed, and because of Congressional Democrats, this interim package provides funds for underserved small businesses, hospitals, and expanded testing to support the lives and livelihoods of the American people," House Appropriations Committee Chairwoman Nita M. Lowey (D-N.Y.) said in a statement. "However, it is disappointing that Republicans refused to support state and local governments or expand food assistance for the vulnerable. As we move on to CARES Act 2, we will continue to fight for expanded and extended support for families, businesses, and state and local governments."
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| | | | ¶46,898 AFGE sets return-to-worksite preconditions amid coronavirus pandemic — FEDERAL NEWS,
Apr. 28, 2020
From: GEA HR answers now
The American Federation of Government Employees (AFGE) has delivered a set of preconditions that it says must be met before any reopening of the federal government. The move comes in response to the Trump Administration’s guidance for actively resuming normal government operations "to the maximum extent possible."
The AFGE detailed its return-to-worksite preconditions in separate April 22 letters to Russell Vought, acting director of the Office of Management and Budget, and Michael Rigas, acting director of the Office of Personnel Management.
Demands. The letters spelled out the union’s preconditions for a safe, prudent, and gradual return to normalcy for federal agency operations with the following five demands (condensed here):
(1) Universal testing for COVID-19: Epidemiologists are unanimous that nationwide universal testing is the best way to identify risk and take action to isolate those who have been in contact with infected individuals. Only with universal testing will it be possible to implement prudent policies for the use of public transportation, social distancing inside federal offices and other worksites, and other appropriate precautions, especially those that involve direct interaction with the general public. For testing and exposure tracing to be effective, it must be universal nationwide.
(2) Science-based standard for the safe return to work: After universal testing and the identification of the extent of risk by location, the federal government should apply a prudent, apolitical, science-based standard for the safe return of federal employees to their worksites. Epidemiologists and other public health experts recommend the standard of 14 days of exponential decline in new cases within a region before easing quarantine and shelter-at-home restrictions.
(3) Treat all workers equally, with full accommodation as needed: The Trump administration memorandum attempted to divide the federal workforce into groups of varying risk of dying from COVID-19, suggesting that healthy workers under the age of 65 be treated differently from so-called "vulnerable populations." This is contradicted by abundant evidence that even healthy workers under the age of 65 are vulnerable to contracting and dying from COVID-19. Recognizing that all federal employees are vulnerable to the effects of COVID-19, the AFGE urged a return policy that treats all workers equally with full accommodation provided to anyone who needs further measures to ensure that individual’s safety and health.
(4) Federal workplaces must be safe workplaces: All federal worksites must have adequate supplies available to the workforce to ensure ongoing efforts to minimize the spread of infection, including employer-supplied masks and personal protective equipment, hand sanitizer, facilities for hand washing that include soap and hot water, tissues, etc. Interior infrastructure must meet safety and health standards to allow proper distancing, dividers, regular disinfecting of workspaces, and areas for isolation. The AFGE also recommends that oximeters and no-touch electronic thermometers be used to ensure employees and others who display signs of possible infection be immediately quarantined. Every federal worksite must be fully OSHA-compliant and operated within CDC guidelines.
(5) Symptomatic employees sent home on leave: After a return to work at federal worksites, every agency must adopt a strict policy to ensure that federal employees who develop a COVID-19 infection, or display any symptom known to be COVID-19 related, be removed from the workplace immediately and that all remaining employees be notified immediately. Contact tracing should be employed, with all those who report contact with the symptomatic employee also removed from the workplace and permitted to work remotely or receive weather and safety leave for a minimum of 14 days.
"Every precaution must be taken to protect human lives as the first consideration in any attempt to reopen the agencies and the economy at large," AFGE President Everett Kelley wrote in the letter. He also "strongly rebuked" the Trump Administration for publishing a set of guidelines he called "premature and imprudent." "These guidelines would, if implemented too soon, worsen the crisis, and unnecessarily expose millions of Americans to illness and potentially, to death," Kelly said. "Human life is precious, and we must protect the health and safety of our government workforce."
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| | | Georgia Department of Public Health COVID-19 Daily Status Report
Georgia Department of Public Health COVID-19 Daily Status Report For: 04/29/2020
These data represent confirmed cases of COVID-19 reported to the Georgia Department of Public Health as of 04/29/2020 12:22:57.
A confirmed case is defined as a person who has tested positive for 2019 novel coronavirus.
COVID-19 Confirmed Cases: No. Cases (%)
Total 25,411 (100%)
Hospitalized 4996 (19.06%)
Deaths 1096 (4.03%)
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