March 19 2020 – With the rapidly developing situation surrounding COVID-19/Coronavirus, many employers have been left wondering how to navigate their operations from an employment practices perspective. Naturally the primary consideration is to protect the health and safety of employees and customers; however, business owners are also faced with tough decisions about how to preserve business operations so that employees still have jobs and customers can still enjoy their goods and services when the smoke clears. While the following list is far from comprehensive, below are a few issues that we have been dealing with over the past couple of weeks:
- Office Closures/Work from Home: Whether to allow employees to work from home depends on the individual circumstances of each employee and employer. In general, if you are not subject to a state or nationally mandated office shutdown (e.g. restaurants in New Jersey), the employer is not currently required to allow an employee to work from home unless the employee has other valid reasons to do so, such as a disability. That being said, just last night, the President signed into law emergency legislation that requires businesses with 500 or less employees to provide up to 80 hours of paid sick leave to employees who are sick with COVID-19, caring for an infected person, or must be at home with their children due to school closures. The legislation also changes and expands the FMLA by allowing employees who have been employed for 30 days to take up to 12 weeks of job-protected leave to care for a child (under 18 years of age) if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency. Both the paid sick leave and FMLA portions of the legislation will take effect on April 2, 2020.
- Keeping the Workplace Safe: The CDC has issued guidance for preventing the spread of the virus in the community, which all employers should review, use reasonable best efforts to follow, and educate staff accordingly. This is particularly important when considering the ramification of workers’ compensation benefits. In the event that an employee contracts COVID-19 at the workplace, the employer could be on the hook for workers’ compensation benefits, so it is imperative to have a plan in place in the event that an employee becomes sick or reports being in contact with an infected individual so as to prevent office-wide infections.
- Layoffs & Other Considerations: Many employers have determined it is necessary to reduce their workforce in order to survive the looming economic downturn and are considering (or already) implementing a reduction in hours, less than 5-day workweeks and/or layoffs. If any of these decisions are being considered, there are a variety of federal and state laws that could come in to play and should be reviewed prior to taking action. For example, the federal Worker Adjustment and Retraining Notification (WARN) Act requires employers with 100 or more full-time employees to provide 60 days written advance notification of employment site closings or mass layoffs. While COVID-19 may exempt or relax the amount of notice that is required (something California has already done in response to the pandemic), general requirements as to the form of the notice and the persons to whom notice must be sent (which often includes state and union officials) will likely remain unchanged. In addition, employers with 20 or more employees that furlough or terminate employer-provided health insurance coverage must provide COBRA health insurance continuing coverage notifications.
These are unprecedented times and the health of your staff, customers, and organization is at stake. Lauletta Birnbaum is closely monitoring this rapidly evolving situation and offering guidance to help you stay abreast of the latest developments and attempt to mitigate risk during this time of uncertainty. Please contact either Frank Lauletta ([email protected]) or Daniel Blanchard ([email protected]).
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Lauletta Birnbaum, LLC is excited to announce that Sarah Cohen has been named a member of the firm effective March 1, 2020.