COVID-19: News and Updates |
| Special #43 - June 9, 2020 |
| Articles and Updates Today
- HRDive article: Trump signs PPP changes into law AUTHOR Dan Ennis @Ennis77Dan
UPDATED June 5 2020, 12:33 p.m. EDTLink to Bill>>
- ¶47,039 WHD makes technical corrections to FLSA’s white collar overtime exemptions — AGENCY REGULATION,
Jun. 9, 2020 - ¶47,040 COVID-19 antibody testing: Useful screening tool or impermissible medical examination? — PRACTICE TIP, June 9, 2020
- HRDive article: Lawsuit alleges Enterprise's COVID-19 layoffs violated WARN AUTHOR Ryan Golden@RyanTGolden
PUBLISHED June 9, 2020
- ¶47,037 OSHA offers COVID-19 safety tips for retail stockroom and loading dock workers — PRACTICE TIP, June 8, 2020
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| | | | HRDive article: Trump signs PPP changes into law AUTHOR Dan Ennis @Ennis77Dan
UPDATED June 5 2020, 12:33 p.m. EDT
Dive Brief:
- The Senate on Wednesday approved legislation to decrease — from 75% to 60% — the proportion of a Paycheck Protection Program (PPP) loan that a small business must put toward payroll. The bill, which the House passed last week, triples — to 24 weeks — the time frame during which the funds must be spent for the loan to be forgiven. It also give businesses five years instead of two to repay any part of the loan that isn't forgiven. And it extends until Dec. 31 the deadline to rehire workers.
- The measure passed with unanimous consent, but some senators still had reservations. Sen. Ron Johnson, R-WI, insisted a letter be entered into the record stating that the PPP loan period closes to new applicants June 30.
- Although the easing of loan requirements generally drew praise, an executive vice president with the Independent Community Bankers of America (ICBA) called the bill "a Senate punt on fixing the issues with the PPP program." The Senate adjourned May 21 for a weeklong break without agreeing on fixes to the PPP. "Much more needs to be done on this bill," said the ICBA's Paul Merski.
Dive Insight:
Although the PPP saw a fugue of interest from small businesses when it was first launched, caveats to loan forgiveness and myriad changes in guidance from the Small Business Administration (SBA) and Treasury Department curbed some companies' enthusiasm for the program. The initial $350 billion in funding ran out in 13 days. However, about $130 billion in loan money remains from the second $320 billion round that was made available in late April, according to the SBA.
"There is no doubt in my mind that PPP restrictions have dampened demand," Karen Kerrigan, president and CEO of advocacy group The SBE Council, told CNBC. "Many will receive minimal forgiveness, and given the uncertainty of economic recovery and when many can reopen, business owners fear for their survival and do not want to take on additional debt."
Guidelines for PPP loans were released fragment by fragment, undergoing several revisions that left businesses unsure whether they qualified for the money and what they must do for forgiveness, Anthony Wilkinson, president of the National Association of Guaranteed Government Lenders, told the Pandemic Response Accountability Committee on Wednesday. The often-contradictory guidance puts banks making those loans at risk, in addition to the businesses receiving them, he said. "Is it any wonder why borrowers and lenders are questioning whether Treasury has set everyone up to fail?"
Wilkinson said, according to Bloomberg. "Is it any wonder why borrowers of all sizes have been returning their loans out of fear of their own government?"
That uncertainty may have led some PPP recipients to return the loans unused. At least $20 billion in PPP loans have been canceled, according to Bloomberg calculations.
The extension of the program's spending period is the most time-sensitive fix in the bill. The initial eight-week time frame ended last Friday for the first businesses approved for the loans. The loan-forgiveness period ends in the next couple of weeks for a majority of National Federation of Independent Business members surveyed last week.
Loan forgiveness was at the root of another senator's caution regarding the PPP bill. Sen. Susan Collins, R-ME, said the House bill created a "cliff." While the current program allows partial loan forgiveness if a company uses less than 75% of a loan for payroll, the House bill appears to state none of the loan would be forgiven if the 60% threshold isn't met, Collins said. "Instead, the employer is saddled with a debt for the entire amount, and no portion of the loan is forgiven or converted to a grant," she said.
Absolution was also a chief concern for the Consumer Bankers Association and the Bank Policy Institute, which asked Congress on Tuesday to automatically forgive PPP loans of less than $150,000.
Under a $150,000 threshold, more than a quarter of all PPP loan dollars would qualify for automatic forgiveness, the banking trade groups said, but 85% of PPP loan recipients would benefit.
"Their time and resources would be better focused on getting the economy safely back up and running, not processing burdensome paperwork," the banking trade groups wrote, according to American Banker.
Recovery from the coronavirus crisis has taken longer than Congress expected when it passed legislation establishing PPP, one lawmaker conceded.
"When we passed these bills in March, quite frankly we thought by now, the economy would be in much better shape than it is," Sen. Ben Cardin, D-MD, said on the Senate floor. "We need to have a program that represents the vast majority of small businesses."
Although 8 in 10 small businesses are in the process of reopening, according to a U.S. Chamber of Commerce survey released Wednesday, 55% think it will take more than six months to be fully operational — up from 50% in an April poll and 46% in March, Bloomberg reported.
For its part, the SBA — looking to make sure PPP loans reach low-income, underserved or nonwhite areas — last week set aside $10 billion of the program's funds for community development financial institutions (CDFIs). In response to civic unrest unleashed in the wake of the May 25 death of George Floyd, CDFI leaders are lobbying for some of the funds to be earmarked to help vandalized small businesses rebuild.
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| | | ¶47,039 WHD makes technical corrections to FLSA’s white collar overtime exemptions — AGENCY REGULATION,
June 9, 2020
from GEA's HR answers now
On June 5, WHD issued a correction to correct technical errors in its September 27, 2019, final rule updating the FLSA’s regulations on the statute’s exemptions for executive, administrative, professional, outside sales, and computer employees.
Raised salary thresholds. The September 2019 final rule increased the standard salary threshold to $684 per week (up from the current $455 per week floor), or $35,568 per year on an annual basis. The compensation level for "highly compensated employees" also rose to $107,432 per year. These revisions to the "white collar" exemptions, which preclude executive, administrative, or professional (EAP) employees from coverage under the FLSA’s overtime provisions, meant that 1.3 million additional employees will be deemed nonexempt and thus eligible for overtime, according to the DOL at the time.
Highly compensated employees. The correction restores the text of 29 CFR § 541.601(b)(3) and (4), which was erroneously deleted in the final rule. These sections provide that highly compensated employees who did not work a full year for an employer may still be exempt if the employee received a pro rata amount of the minimum amount to qualify as a highly compensated employee.
Automatic updates. The agency also deleted 29 CFR § 541.607, which requires automatic updates to the amounts required to be paid to exempt employees. In its final rule, the DOL declined to finalize its proposal to propose updates every four years and instead reaffirmed its commitment to better implement Congress’s instruction to define and delimit the EAP exemptions ‘‘from time to time’’ through regulations.
No notice and comment period. Because this rule is correcting errors in the September 2019 final rule, WHD will not have a notice and public comment period, and the changes will become effective on the date of publication.
Source: Written by Wayne D. Garris Jr., J.D.
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| | | | ¶47,040 COVID-19 antibody testing: Useful screening tool or impermissible medical examination? — PRACTICE TIP,
Jun. 9, 2020 from GEA's HR answers now
As the United States still struggles with testing capacity for active COVID-19 infections, employers are increasingly asking, "may we require our employees be tested for the presence of COVID-19 antibodies?" This is particularly true following the Equal Employment Opportunity Commission’s position that employers were permitted to test for the presence of active COVID-19 infection, set forth in its What You Should Know About COVID-19 resource (Q&A 6).
- The appeal. Antibody testing is appealing because there is widespread availability on the private market, and employees do not need to satisfy certain screening criteria before receiving a test, unlike tests for active COVID-19 infection. If an employee has the antibodies for COVID-19, that means the employee was presumed to have had COVID-19 at some point in the past. According to the CDC, antibodies develop between 1-3 weeks after infection. A positive antibody test does not indicate the presence of an active infection.
- The hope. The hope with COVID-19 is that antibodies will confer some immunity for some period of time. In the employment context, the appeal of using antibody testing is that employers and employees can feel safer with an employee who has antibodies being back in the workplace. Perhaps even those with antibodies are placed in a more public-facing role with the notion they cannot contract COVID-19 again. However, this is, after all, the "novel coronavirus" and there are many things scientists simply do not yet know about the disease.
- The problem. A primary concern about antibody testing is the tests themselves are of varying reliability. Originally, not all tests that are offered on the private market were authorized by the FDA (the FDA has since ordered those tests off of the market). The tests that have been authorized by the FDA were granted emergency use authorization (EUA). EUA status may be given by the FDA Commissioner to allow unapproved products to be used in an emergency to diagnose, treat, or prevent serious or life-threatening diseases or conditions when there are no adequate, approved, and available alternatives. Although the FDA has authorized use of some antibody tests, it has not independently validated any of them.
- The guidance. This leads to the CDC's recently issued interim guidance on antibody testing, which severely undermines the assumption of immunity: "We currently don’t have enough information yet to say whether someone will definitely be immune and protected from reinfection if they have antibodies to the virus." The CDC also expressly stated"Serologic test results should not be used to make decisions about returning persons to the workplace." This is hardly a ringing endorsement for mandating antibody testing.
All of this brings us back to the initial question—"may we require our employees be tested for the presence of COVID-19 antibodies?" Let’s turn back to the EEOC FAQ on testing, which only expressly approves of testing for the active presence of COVID-19 virus and is silent on antibody testing. This portion of the EEOC’s response is illustrative:
Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.
The takeaway. What does this all mean for employers? Under the ADA, all mandatory employee testing must be job-related and consistent with business necessity. The EEOC has concluded that because COVID-19 presents a "direct threat" in the workplace, employers may test for the presence of an active infection. By contrast, antibody tests do not detect active infection and therefore do not aid in preventing the spread of COVID-19 in the workplace. In addition, the reliability of the antibody tests themselves is problematic. Thus, antibody tests do not appear job-related and consistent with business necessity, and would likely be viewed as an impermissible medical inquiry—not to mention the potential claims that could arise should employers take employment actions (reassignment, reduction in hours, or loss of overtime, for example) based upon the results of the testing.
As scientists learn more about what the presence of COVID-19 antibodies mean for immunity, and as antibody testing becomes more reliable, it is certainly possible antibody testing may become a permissible medical examination. For now, employers should think twice before mandating antibody testing.
About the author: Shaw Rosenthal’s Lindsey A. White represents management in employment litigation in state and federal court. She also handles matters before administrative agencies like the EEOC, the Maryland Commission on Civil Rights, and the Department of Labor. Before joining Shawe Rosenthal, Lindsey was a Senior Trial Attorney for the EEOC, where she litigated cases arising under Title VII, the ADA, ADEA, and the Equal Pay Act. While at the EEOC, Lindsey was detailed as a Senior Attorney Advisor/Special Assistant to Commissioner Charlotte Burrows.
Source: Written by Lindsey A. White, J.D.
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| | | | HRDive article: Lawsuit alleges Enterprise's COVID-19 layoffs violated WARN AUTHOR Ryan Golden@RyanTGolden
PUBLISHED June 9, 2020
Dive Brief:
- A former Enterprise employee has sued the company on behalf of herself and "approximately hundreds" of similarly situated former employees, alleging it failed to provide advance notice of layoffs as required by the Worker Adjustment and Retraining Notification (WARN) Act (Benson v. Enterprise Holdings Inc., No. 6:20-cv-00891 (M.D. Fla. May 27, 2020).
- Elva Benson, the lead plaintiff in the suit, claimed that Enterprise terminated her and the other putative class members without cause and without advance written notice around April 27. Benson said she was furloughed in March due to COVID-19, "meaning Defendants knew its business was suffering and, thus, knew a mass layoff was coming."
- Enterprise did not respond to an HR Dive request for comment.
Dive Insight:
Enterprise isn't the first employer to face a class action lawsuit of this nature during the pandemic. In April, two former employees of restaurant chain Hooters alleged that the company enacted a mass layoff without notice on March 25. A statement by Hooters said the company and its franchisees "had no alternative" but to reduce its workforce due to COVID-19’s impact. That suit remains unresolved.
The pandemic has led to layoffs, furloughs and other labor reductions at many U.S. firms, and this reality is reflected in market data. In its Job Openings and Labor Turnover Survey for March, released mid-May, the U.S. Bureau of Labor Statistics found that the rate of nonfarm layoffs and discharges increased to 7.5%, a series high. In April, this rate decreased to 5.9%, BLS said in a June 9 update.
But whenever employers decide to furlough or lay off employees, they must pay attention to any applicable WARN Act obligations, employment law experts previously told HR Dive. A U.S. Department of Labor guidance document outlines the scenarios that trigger WARN.
State and local governments may have additional notice requirements, and some have made edits to these rules in recent months. New Jersey, for example, in January became the first state to require increased notice time, as well as severance pay, for certain plant closures, transfers and mass layoffs. However, after the pandemic's onset, the state amended the law to exclude any layoff resulting from national emergencies, among other scenarios, from its definition of "mass layoff."
Similarly, in California, Gov. Gavin Newsome suspended the usual notice requirements of the state's Cal-WARN Act through the end of the state of emergency he declared as a result of COVID-19.
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| | ¶47,037 OSHA offers COVID-19 safety tips for retail stockroom and loading dock workers — PRACTICE TIP,
June 8, 2020 from GEA's HR answers now
As it has for several other types of workers, OSHA has issued an alert listing safety tips that employers can follow to protect stockroom and loading dock workers in the retail industry from exposure to COVID-19.
Safety tips. The federal health and safety agency offered these tips to help reduce the risk of exposure to COVID-19 among stockroom or loading dock workers, as well as other retail workers, who perform tasks that do not involve frequent interaction with the public:
- Encourage workers to stay home if they are sick.
- Stock displays, such as shelves and freezers, during slow periods or shifts during which stores are closed to minimize contact with the public.
- If stocking occurs while stores are open, use barriers or markers to physically separate employees from customers.
- Maintain at least six feet between coworkers and customers, where possible.
- Limit customer capacity in stores.
- Coordinate with vendors and delivery companies to minimize the need for stockroom and loading dock workers to have contact with delivery drivers.
- Allow workers to wear masks over their nose and mouth to prevent spread of the virus.
- Discourage sharing of tools or equipment, and disinfect tools that must be shared after each use.
- Provide a place to wash hands and alcohol-based hand rubs containing at least 60 percent alcohol.
- Routinely clean and disinfect surfaces and equipment with EPA-approved cleaning chemicals from List N or that have label claims against the coronavirus.
- Encourage workers to report any safety and health concerns.
- The new alert is also available in Spanish.
Additional information. More workplace safety information is available on OSHA’s Publications webpage. OSHA has also published Guidance on Preparing Workplaces for COVID-19, a document aimed at helping workers and employers learn about ways to protect themselves and their workplaces during the ongoing pandemic.
Visit OSHA’s coronavirus webpage frequently for updates. For further information about coronavirus, please visit the Centers for Disease Control and Prevention.
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| | | | Georgia Department of Public Health COVID-19 Daily Status Report For: 06/03/2020 Updated 3pm daily
These data represent confirmed cases of COVID-19 reported to the Georgia Department of Public Health as of 06/03/2020. A confirmed case is defined as a person who has tested positive for 2019 novel coronavirus. (Total tests 657,068)
COVID-19 Confirmed Cases: Total 53,249 Hospitalized 8,872 Deaths 2,285 |
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Georgia Employers' Association |
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