COVID-19: News and Updates |
| Special #36 - May 15, 2020 |
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Articles and Updates Today
- Watch Recorded Webinar for Free: Coronavirus Return to Work Blueprint By Jeffery L. Thompson and Mel Haas
- National Labor Board: Division of Judges Will Resume Trials Effective June 1, 2020 May 15, 2020
- Second-guessing the advice columns: Small-employer exemption to FFCRA Constangy, Brooks, Smith & Prophete,LLC BY ROBIN SHEA ON 5.15.20
- ¶46,957 Dems float an expansive version of the next COVID-19 relief package — PROPOSED LEGISLATION, (May 15, 2020)
Written by Pamela Wolf
- COVID-19 USDOL News : ¶46,956 Employers pay $4K to workers after denying FFCRA-guaranteed emergency paid sick leave — FEDERAL NEWS, (May 15, 2020) Written by Pamela Wolf, J.D
- Georgia Department of Public Health COVID-19 Daily Status Report
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Watch Recorded Webinar for Free: Coronavirus Return to Work Blueprint
If you would like the Resource Materials to Accompany this GEA Presentation "Coronavirus Return to Work Blueprint for Employers" please contact us by one of the follow below:
(you have register to watch/ registration is free)
Constangy, Brooks, Smith & Prophete, LLP Mel Haas Partner - Office Head
478.621.2426
E-mail: MHaas@constangy.com
Jeff Thompson
Partner
478.621.2423
E-mail: JThompson@constangy.com
or
Georgia Employers' Association
Buddy McGehee Director 478.722.8282 Email: director@georgiaemployers.org
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| | | Division of Judges Will Resume Trials Effective June 1, 2020
May 15, 2020
Washington, DC – The National Labor Relations Board Division of Judges announced today that it will resume holding hearings on unfair labor practice complaints effective June 1, 2020. The Division of Judges had previously postponed hearings scheduled for May in light of the COVID-19 pandemic and related federal, state, and local guidance and orders. However, the Agency has since taken the necessary steps to acquire the licenses and equipment needed to conduct such hearings remotely using online videoconferencing technology.
Accordingly, effective June 1, the Division of Judges will not sua sponte postpone scheduled hearings due to the COVID-19 pandemic. Rather, prehearing requests for postponement will be considered on a case-by-case basis by the Deputy Chief Administrative Law Judge in Washington, D.C. and Associate Chief ALJs in New York and San Francisco under Sec. 102.24 of the Board’s Rules, subject to the right of the parties to request special permission from the Board to appeal the ruling under Sec. 102.26. Motions or objections with respect to holding an in-person versus an online videoconference hearing, or taking particular witness testimony by videoconference, will be considered and ruled on by the designated trial judge pursuant to Sec. 102.35(a)(6) and (8) of the Board’s Rules, likewise subject to the parties’ special appeal rights under Sec. 102.26.
Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees and employers, and unions from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions. The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year.
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| | | Second-guessing the advice columns: Small-employer exemption to FFCRA BY ROBIN SHEA ON 5.15.20
POSTED IN CORONAVIRUS, FAMILIES FIRST CORONAVIRUS RESPONSE ACT Constangy, Brooks, Smith & Prophete,LLC
It's not as large as you'd think.
One of my favorite workplace advice columnists, Karla Miller of The Washington Post, had a good one yesterday about an employee who was having to bring her 10-year-old daughter to work. (This was because the employee was a single mom and her daughter's school was closed because of COVID-19.)
The daughter had a tantrum at the office one day, which inspired the boss to talk to the mother-employee about her "options," if you know what I mean and I think you do.
The employee said that she asked her boss about taking leave under the Families First Coronavirus Response Act but that the boss responded that the company wasn't covered because it had only four employees.
"Too bad. I guess she'll have to file for unemployment, then."
Oh yeah! Private sector employers with 1-499 employees are covered by the FFCRA. (Most public sector employers are covered, regardless of the number of employees.) I thought Karla or a commenter would point this out, but as of the time I wrote this blog post, they hadn't. They may have assumed that the employer qualified for the "small-employer" exemption from the FFCRA, which is available to employers with fewer than 50 employees. (Since the FFCRA already applies to small employers, I'll call this the "teeny-tiny employer exemption.")
This teeny-tiny employer exemption is pretty teeny-tiny:
- It applies only to FFCRA leave (both expanded Family and Medical Leave and "Reason No. 5" under the expanded Paid Sick Leave Act) related to care of a son or daughter because of a school or child care closing, or unavailability of a child care provider, because of COVID-19. There is no exemption from the other provisions of the Emergency Paid Sick Leave Act (for example, the requirement to provide paid leave to an employee who is having to stay home because of a quarantine or isolation order from a public health authority).
Even if the leave is needed for a qualifying reason, the exemption is not available unless an authorized officer of the employer certifies in writing that one of the following conditions exists:
- Allowing leave would cause the company’s expenses and financial obligations “to exceed available business revenues and cause the small business to cease operating at a minimal capacity”;
- The absence of the employee requesting leave would put the company’s operational or financial health at risk because of the employee’s “specialized skills, knowledge of the business, or responsibilities”; or
- There are not enough employees with the requisite skills who are available to perform the work that the employee performs, and the employee’s “labor or services are needed for the small business to operate at a minimal capacity.”
NOTE TO EMPLOYERS SEEKING THIS EXEMPTION: Please do not send your small-employer documentation to the U.S. Department of Labor. The DOL doesn't want it. How do I know that? Because the DOL says, "Please do not send us your documentation related to the small-employer exemption," every chance it gets. (It's in the FFCRA regulations at section 826.40(b), and also in FAQ No. 4.) Just keep your documentation in a safe place so that you can easily produce it if you are the subject of an investigation.
Now, let's go back to Karla's column and see whether the letter writer's employer really is exempt from the FFCRA.
- The employer has fewer than 50 employees. That's good.
- The employee is needed to care for her hot-tempered daughter because the daughter's school is closed for a COVID-19-related reason. That's good.
- We don't know what position the employee holds, but she says she has to answer the phone, and accept mail and deliveries. This sounds to me like some type of non-exempt clerical position that doesn't require much in the way of specialized expertise. That's maybe not so good.
Assuming I'm right about the employee's job duties,
- Would giving her paid leave cause the employer's expenses to exceed revenues? We can't say for sure, but my guess is no. She's probably not highly compensated, and the employer would be eligible for a 100 percent payroll tax credit if it granted the leave.
- Would her absence put the company at risk because of her "specialized skills, knowledge of the business, or responsibilities"? Based on her description of her job duties, I'm thinking probably not.
- Is there a shortage of workers in the area who could perform her tasks? If the employer is in the D.C. area, I seriously doubt it. On the other hand, if the employer is in Ten Sleep, Wyoming, then maybe so.
My feeling is that the employer might qualify for the exemption in some circumstances, but maybe not with respect to the employee who wrote to Karla. Which means that the employee could be entitled to paid leave under the FFCRA.
(Should we tell Karla?) |
| | | | ¶46,957 Dems float an expansive version of the next COVID-19 relief package — PROPOSED LEGISLATION,
(May 15, 2020)
Democrats on May 12 introduced the Heroes Act in the House—their version of "phase four" COVID-19 relief in the continuing process of providing necessary resources and support to respond to the ongoing coronavirus crisis. The massive 1,815-page bill would provide extensive relief that goes beyond what many would consider COVID-19 target measures. Republicans have called it a "partisan wish list" that will be dead on arrival in the Senate.
Health and insurance provisions. Among the key health provisions in H.R. 6800 are the establishment of a national testing, contact tracing, and surveillance strategy, provisions to ensure that all Americans can seek treatment for COVID-19 without concern for cost, support for front line health care providers, expansion of affordable health coverage, enhanced vaccine manufacturing and distribution capacity, investments in public health infrastructure, and new protections to keep nursing home patients safe.
The legislation would support hospitals and frontline health care providers by infusing an additional $100 billion into the Health Care Provider Relief Fund, along with requirements on allocation of the funding to ensure that funds are distributed to providers in an equitable and efficient way. The bill would also improve the Accelerated and Advance Payment Program that has been critical to keeping providers afloat for the past few months.
H.R. 6800 would in addition provide stable and affordable health coverage for millions of Americans by fully subsidizing the cost of COBRA and furloughed workers’ premiums to allow workers to maintain their employer-sponsored coverage if they lose employment, have their hours reduced, or are furloughed as a result of the COVID-19 pandemic.
Expanding on the FFCRA. Among other things, the Heroes Act would also make changes related to the emergency paid sick and family and medical leave provided in the Families First Coronavirus Response Act (FFCRA), including extending protections from the end of 2020 to the end of 2021, according to a bill summary.
Expanded FMLA leave. The bill would temporarily suspend, until December 31, 2022, the current 1,250 hour eligibility requirement and reduce the tenure eligibility requirement from 12 months to 90 days under non-emergency Family and Medical Leave Act (FMLA) to ensure rampant unemployment and furloughs do not leave workers unable to qualify for FMLA benefits in the near future. The legislation would also clarify that public agencies are covered under the FMLA, regardless of the number of employees.
The Heroes Act would also expand emergency leave definitions to give private and public sector employees who have been on the job for at least 30 calendar days the right take up to 12 weeks of job-protected paid leave under the Family and Medical Leave Act, no matterthe size of their employers.
Types of leave. Employees would be able to take this leave to:
- Self-isolate because they were diagnosed with COVID-19;
- Obtain a medical diagnosis or to care for symptoms of COVID-19;
- Comply with a recommendation or order to self-isolate because physical presence at work would jeopardize the health of the employee, other employees, or a person in the employee’s household.
These types of leave are not currently covered under the FFCRA’s expanded family and medical leave provisions.
How leave is counted. Workers would be provided a full 12 weeks of paid emergency FMLA leave that would not count as an employee’s 12 weeks of non-emergency unpaid FMLA leave. Employees would also be able to take emergency FMLA leave concurrently with any other paid leave they have available.
Among other things, H.R. 6800 would clarify that employees can take leave intermittently or on a reduced work schedule, regardless of a previous agreement between an employer and employee.
Emergency paid sick time. As to the FFCRA Act’s paid sick time provisions, H.R. 6800 would permit eligible employees to use paid sick leave for the uses allowed under the emergency FMLA as expanded above. For each 12-month period, eligible full-time employees would be entitled to 80 hours of emergency paid sick leave. For each 12-month period, eligible part-time employees would be entitled to the hours of emergency paid sick leave that equaled the typical number of hours that they work in a typical two-week period.
The legislation would also:
- Ensure that employees receive emergency paid sick leave in addition to any existing employer-provided paid leave;
- Clarify that employees can take leave intermittently or on a reduced work schedule, regardless of a previous agreement between an employer and employee;
- Allow employers to require requests for paid sick leave to be supported by basic documentation, but not before seven days after the employee has returned to work;
- Require that employees provide their employers with notice of the need to take leave as soon as is practicable;
- Clarify that full emergency paid sick leave is available to employees where they begin employment with a new employer;
- Require employers to restore employees to their positions after returning from paid sick leave; and
- Eliminate the large employer exemption, and clarify that nonprofit organizations are covered employers to ensure that all full-time and part-time employees earn full wage replacement (up to $511 per day) for all emergency paid sick leave uses.
The Heroes Act would make corresponding changes to employer payroll tax credits.
At the Department of Labor. The Heroes Act would provide the Department of Labor with $3.1 billion to support workforce training and worker protection activities related to coronavirus, including:
- $2 billion to support worker training;
- $25 million for migrant and seasonal farmworkers, including emergency supportive services;
- $925 million to assist states in processing unemployment insurance claims;
- $15 million for the federal administration of unemployment insurance activities;
- $100 million to OSHA for workplace protection and enforcement activities in response to coronavirus, including $25 million for Susan Harwood training grants that protect and educate workers;
- $6.5 million for the Wage and Hour Division to support enforcement and outreach activities for paid leave benefits; and
- $5 million for the Office of the Inspector General.
Tax credits to help workers. The measure would provide a multitude of tax credits, including these for workers:
- Double the above-the-line deduction for certain unreimbursed out-of-pocket expenses for elementary and secondary school teachers from $250 to $500 (the amount is adjusted for inflation).
- A $500 above-the-line deduction for unreimbursed expenses of professional first responders related to the cost of uniforms or tuition and fees related to training (the amount is indexed to inflation).
- A $500 above-the-line deduction for 2020 for the uniforms, supplies, and equipment of first responders and COVID-19 front-line employees, defined as those who perform at least 1,000 hours of essential work, as defined for pandemic premium pay reimbursable from the COVID-19 Heroes Fund.
The bill would also provide a 30 percent refundable payroll tax credit for expenses reimbursed or paid for the benefit of an employee for reasonable and necessary personal, family, living, or funeral expenses incurred as a result of the presidentially declared disaster related to COVID-19. The credit percentage would increase to 50 percent for expenses paid to employees if a substantial portion of the services performed by the employee is essential work, as defined for pandemic premium pay reimbursable from the COVID-19 Heroes Fund. No credit would be permitted if the expenses are provided in a manner which discriminates in favor of highly compensated employees.
Union support. Service Employees International Union (SEIU) International President Mary Kay Henry quickly signaled the union’s support for the Heroes Act relief package, saying: "Working people have been calling on their elected officials to take bold action that ensures health, safety and economic security for everyone. Failure to act immediately and inclusively will cost more lives and risk even deeper economic hardship for us all."
As Kay sees it, President Trump has refused to marshal the federal government’s power to ensure enough personal protective equipment or to advocate for working people. "Our families need him to stop putting corporations and his reelection campaign before their well-being," she said. "We need decisive action that ensures working people come first."
Source: Written by Pamela Wolf, J.D.
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| | | ¶46,956 Employers pay $4K to workers after denying FFCRA-guaranteed emergency paid sick leave — FEDERAL NEWS, (May 15, 2020)
On May 12, the Department of Labor’s Wage and Hour Division separately announced a pair of settlements that provide employees with back pay to which they were entitled but were denied when their employers refused to give them the emergency paid sick leave for COVID-19-related reasons guaranteed under the Families First Coronavirus Response Act (FFCRA). Together, the employers will provide $4,217 to the affected employees.
Among other things, the FFCRA requires covered employers to provide employees up to two weeks (80 hours) of paid sick leave (up to a specified cap) when the employee is unable to work due to a quarantine or isolation order related to COVID-19; has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19; or is experiencing COVID-19 symptoms and seeking a medical diagnosis.
Healthcare provider-ordered self-quarantine. Wolfforth, Texas-based West Texas Paving will pay an employee $1,200 in back wages after failing to provide the employee paid sick leave under the newly passed Emergency Paid Sick Leave Act, which is part of FFCRA, after healthcare providers ordered the employee, who had coronavirus symptoms, to self-quarantine.
Investigators found that the construction company had failed to pay the employee for FFCRA-qualifying paid sick leave after the employee informed the company about their symptoms and medical diagnosis, and was hospitalized.
After the WHD contacted West Texas Paving about the new law that took effect on April 1, 2020, and explained employers’ obligations under the FFCRA, the company cooperated fully with investigators. Once the company understood its new legal responsibility, it agreed to pay the employee’s full wages of $15 an hour for 80 hours of leave. West Texas Paving also agreed to future FFCRA compliance.
"This case should alert all employers that protecting public health and employees’ rights during the coronavirus pandemic are critically important," said WHD District Director Evelyn Sanchez.
Seeking medical diagnosis. Avon, Indiana-based Mahant Trucking has paid a truck driver $3,017 in back wages after initially denying emergency paid sick leave while the employee was experiencing coronavirus symptoms and seeking a medical diagnosis.
The WHD found that Mahant Trucking violated the FFCRA’s Emergency Paid Sick Leave Act provisions.
"Employers must take all necessary steps to comply with the Families First Coronavirus Response Act and provide employees paid sick leave to care for themselves and family members when required," said WHD District Director Patricia Lewis.
Source: Written by Pamela Wolf, J.D. |
| | | | Georgia Department of Public Health COVID-19 Daily Status Report
Georgia Department of Public Health COVID-19 Daily Status Report For: 05/15/2020
These data represent confirmed cases of COVID-19 reported to the Georgia Department of Public Health as of 05/15/2020 12:22:57.
A confirmed case is defined as a person who has tested positive for 2019 novel coronavirus. (Total tests 301,874)
COVID-19 Confirmed Cases:
Total 36,681 Hospitalized 6,438 Deaths 1,557
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Georgia Employers' Association |
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