1. Help your workforce feel comfortable and confident about returning to work by informing and training them on C19 safety measures implemented in the workplace such as hygiene, social distancing, and sanitizing.
2. Allow your workforce to continue a modified telecommuting program, such as alternating “at-office” and “home” days to limit the number of employees at the workplace.
3. Be mindful of EEOC laws and regulations when bringing individuals back to work, including consistency and fairness across protected classes.
4. Likewise, be aware of potential reasonable accommodations for workers part of vulnerable groups, or those who are experiencing a lack of childcare due to C19.
5. Ensure frequent communication between management and employees and set clear expectations for job responsibilities as your workforce navigates the ongoing impact of the C19 pandemic.
CARES ACT FAQS
What is the CARES Act?
The Coronavirus Aid, Relief, and Economic Security Act is a two trillion dollar relief package intended to aid Americans and businesses impacted by C19. The CARES Act provides $377 billion to small businesses affected by the current economic crisis through several different programs, including the Payment Protection Program (“PPP”), Economic Injury Disaster Loans (“EIDL”) and related grants, current SBA loan relief, in addition to providing billions of dollars for federal unemployment insurance and direct payments to qualifying individuals.
Does the ACT provide assistance for retaining employees?
Yes - the CARES Act offers Payment Protection Program (PPP) loans, which are federally funded and intended to be forgivable for employers maintaining their payroll during the C19 pandemic.
What businesses qualify for PPP loans?
Businesses in operation no later than February 15, 2020, and having fewer than 500 employees per physical location. The CARES Act also extends this program to non profit organizations, sole proprietorships, self-employed individuals, and independent contractors.
How are loan sizes calculated?
The maximum loan size is $10 million but the amount businesses may receive is calculated in different ways:
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Businesses operating between February 15, 2019, and June 30, 2019, may receive up to 250% of the average monthly payroll.
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Businesses with seasonal workers may use March 1, 2019, to June 30, 2019, for average monthly payroll calculation.
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Businesses not operating during the 2019 time period may receive up to 250% of average monthly payroll for the January 1, 2020 to February 29, 2020, time period.
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Businesses with an EIDL received between February 15, 2020 and June 30, 2020, may refinance into a PPP loan in a potentially larger amount.
What does “payroll” include under the PPP?
Payroll under the PPP includes: compensation, such as salary, wage, commission, payment of cash tip or equivalent; leave, such as vacation, parental, family, medical, or sick time; severance pay; healthcare and retirement benefits; and payroll taxes.
PPP funds cannot be used for the following: employee/owner compensation over $100,000; taxes imposed or withheld under chapters 21, 22, and 24 of the IRS code; and Families First Coronavirus Response Act credits.
What options do furloughed and separated workers have?
Workers may apply for unemployment insurance, depending on state law eligibility. For example, some states allow furloughed workers to receive UI benefits and others require only a reduction in pay (rather than $0 income). The CARES Act provides for federal unemployment insurance of $600/week for up to four months for qualifying individuals, found here.
Does the CARE Act provide for individual relief?
Yes - Americans with annual adjusted gross income under $75,000 will receive direct payments of $1,200, and joint flyers with AGI under $150,000 will receive $2,400. Direct payments will be reduced for AGI over these amounts; additional information may be found here. The IRS will use 2018 tax returns as the basis for AGI calculations, unless 2019 returns are filed prior to AGI determination.
Individuals with dependents under the age of 18 will receive $500 per child and is prorated based on the same AGI scale. If individuals do not qualify for the direct stimulus payments based on 2018 or 2019 income, but have decreased income in 2020, thay be eligible for a tax credit.
Does the CARES Act provide grants?
Yes - qualifying businesses may apply for a grant up to $10,000 to be used for any business-related expense by applying for an EIDL through the SBA (even if previously applied), found here.
I'm worried about making payments on our SBA loans - what options are available?
The Small Business Debt Relief Program provides other loans, such as non-disaster SBA loans, and microloans. Due to C19, the SBA will cover all loan payments for the next six months and are extending relaxed eligibility requirements to new borrowers. If you have questions or need assistance applying for these loans you can contact your local Small Business Development Center or local Women's Business Center, located here.
Questions, concerns, or additional guidance?
Contact Stephen Rotter or Jennifer Gokenbach
The Workplace Counsel
303.625.6400
FAMILIES FIRST C19ˢᵐ RESPONSE ACT: EMERGENCY SICK AND FAMILY LEAVE
1. What is the Families First Coronavirus Response Act (FFCRA)?
The FFCRA is 112-pages in total. Among other things, it obligates certain employers to provide leave under its paid sick leave provisions (Emergency Sick Leave) and its Family Medical Leave Act amendments (Emergency Family Leave).
2. When do employers have to comply with the FFCRA?
The FFCRA was passed by Congress and signed into law on March 18, 2020. It is effective on April 2, 2020 and continues through December 31, 2020. Thus, employers must comply with the FFCRA by April 2, 2020.
3. What employers must comply with the FFCRA?
Private employers with less than 500 employees (and some governmental entities) are covered under the FFCRA. Healthcare providers, emergency responders and companies with less than 50 employees (who are having viability issues) may be exempted by forthcoming regulations from the U.S. Department of Labor. The law also allows employers to exclude employees who are health care providers or emergency responders.
Emergency Sick Leave Requirements
4. How much Emergency Sick Leave must be provided and for what reasons?
For full-time employees, employers must provide 80 hours of paid sick leave. For part-time employees, employers must provide the average number of hours worked by the employee during a two-week period. Emergency Sick Leave must be provided if an employee is:
a. Under governmental or healthcare provider orders to quarantine;
b. Experiencing C19ˢᵐ symptoms and seeking a medical diagnosis;
c. Caring for an individual meeting categories a or b above;
d. Caring for a child whose school is closed or child care provider is unavailable, both due to C19ˢᵐ; or
e. Suffering a substantially similar qualifying condition specified by the Department of Health and Human Services.
5. Do employees have to be employed for a certain period of time or have worked a certain number of hours to be eligible for Emergency Sick Leave?
No, Emergency Sick Leave must be available immediately regardless of how long the employee has been employed.
6. How is Emergency Sick Leave paid?
Employees must be paid their regular rate of pay or applicable minimum wage (whichever is greater) if taking leave for themselves, with a cap of $511/day and $5,110 total. Employees caring for family members must be paid an amount equal to 2/3 of their regular rate of pay or applicable minimum wage (whichever is greater), with a cap of $200/day and $2,000 total.
7. Can employers require employees to provide reasonable notice of the need to take Emergency Sick Leave?
For the first day of Emergency Sick Leave, no. However, after the first day of Emergency Sick Leave, an employer may require the employee to follow reasonable notice procedures in order to continue receiving paid sick time.
8. Do employers have to pay out unused Emergency Sick Leave upon termination of employment?
No, Emergency Sick Leave does not carry over from year to year and it is not required to be paid out upon separation from employment.
9. Are there any required employer notices?
Yes, employers are required to post an Emergency Sick Leave notice in a conspicuous place, such as a break room. A model notice will be issued by the U.S. Department of Labor on or before March 25, 2020.
10. If an employer already provides a generous paid time off policy with paid leave exceeding the requirements for Emergency Sick Leave, do they still have to provide Emergency Sick Leave?
Yes, employers with generous PTO policies still must provide the additional Emergency Sick Leave. Employers also cannot require employees to use other paid leave before providing Emergency Sick Leave.
11. Can an employer require an employee to find a replacement before allowing the employee to take Emergency Sick Leave?
No, an employer may not require an employee to find a replacement employee during the time period in which the employee is taking Emergency Sick Leave. Employers also cannot discharge, discipline or discriminate against employees for requesting, taking or complaining about Emergency Sick Leave.
12. What else do employers need to be aware of regarding Emergency Sick Leave?
Employers are not subject to the 6.2% social security payroll tax for Emergency Sick Leave wages. Employers also can claim a tax credit on a quarterly basis equal to 100% of the Emergency Sick Leave wages paid.
Emergency Family Leave Requirements
13. How much Emergency Family Leave must be provided and for what reasons?
Covered employers must provide up to 12 weeks of Emergency Family Leave for an employee who is unable to work or telework because his or her child's school is closed or daycare provider is unavailable, both due to a “public health emergency” such as C19ˢᵐ.
14. Do employees have to be employed for a certain period of time or have worked a certain number of hours to be eligible for Emergency Family Leave?
Yes, employees must be employed for at least 30 calendar days, although no minimum number of hours worked is required. Full-time, part-time and temporary employees are thus eligible for Emergency Family Leave.
15. How is Emergency Family Leave paid?
The first 10 days of Emergency Family Leave may be unpaid, but the employee can elect to use accrued paid time off (e.g., vacation, personal, sick, etc.). The employee may also utilize Emergency Paid Sick Leave (caring for a family member) for the first 10 days of leave, as described above. After the first 10 days, the employer is required to provide paid leave for the remaining leave of up to 12 weeks in an amount equal to at least 2/3 of an employee's regular's rate of pay, with a cap of $200/day and $10,000 total.
16. Can employers require employees to provide reasonable notice of the need to take Emergency Family Leave?
Yes, but only where the need for leave is foreseeable.
17. Is job restoration required for employees returning from Emergency Family Leave?
Yes, employees are generally entitled to be restored to their position or an equivalent one upon returning from leave. However, if an employer has less than 25 employees, the employer does not have to return the employee to their same or similar position if: a) the position was eliminated due to economic or operating conditions caused by C19ˢᵐ; b) the employer made reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced; and c) the employer makes reasonable efforts within the 1 year period following the employee's 12-week leave period to contact the employee if an equivalent position becomes available.
18. What else do employers need to be aware of regarding Emergency Family Leave?
Employers are not subject to the 6.2% social security payroll tax for Emergency Family Leave wages. Employers can also claim a tax credit on a quarterly basis equal to 100% of the Emergency Family Leave wages paid.
Note: This guidance does not provide information directly related to FFCRA tax issues for employers or employees. Please consult your tax advisor for such information.
Questions, concerns, or additional guidance?
Contact Stephen Rotter or Jennifer Gokenbach
The Workplace Counsel
303.625.6400
C19ˢᵐ GUIDANCE
1. Can employers send or keep a sick employee home?
Yes, employers can send or keep a sick employee at home. Employers should be cautious as to not discriminate against any specific group, but base decisions on a good faith belief and probable cause to determine if an individual is sick, including an employee's own disclosure or reasonable observation. Inaction by not sending sick employees home may lead to an OSHA violation, among other regulations, which requires employers to keep their workplaces free from potential hazards, such as C19ˢᵐ.
2. How long may employers require employees to stay home and not come to the workplace?
Employers may require sick employees to stay home until they have been symptom-free for at least 24 hours, although 48 hours is a safer choice and is reasonable. In some states, employers can require employees to provide doctors notes to return back to the workplace. However, following the CDC's advice, requiring doctor's notes is not recommended for return to work (due to medical personnel being extremely busy during this time), so employers should focus on each employee's individual symptoms.
*Some states, like Colorado, enacted emergency rules for sick leave, requiring employers in certain industries to provide up to four days of paid sick leave to employees exhibiting C19ˢᵐ symptoms and waiting to be tested. These industries include: Leisure and hospitality, food service, child care, education (and related work), home health care (if working with elderly, disabled, ill, or high-risk individuals), nursing home, and community-living facilities – and in Colorado are in effect for at least the next 30 days (until mid-April 2020).
3. Can employers require employees to test negative for C19ˢᵐ or obtain a doctor's note reflecting the same before allowing back in the workplace?
Generally speaking, no. Requiring employees to submit medical test results could be considered an ADA violation unless permissible by local, state, or federal governments. Employers may also ask an employee if they are experiencing any C19ˢᵐ symptoms (e.g., fever, cough, upper respiratory illness). Employers may recommend employees with such symptoms get tested for C19ˢᵐ before returning to the workplace.
4. What should employers do if an employee tests positive for C19ˢᵐ, or are exposed to someone who has?
• If an employee tested positive for C19ˢᵐ, employers may require them to stay at home for at least 14 days, and we recommend they provide sick leave during this time period - but be open to additional days if they require additional time off.
• If employees are confirmed to have been exposed to someone who tested positive for COVID- 19, we recommend the employer mandates a 14-day quarantine period and provides sick leave during this time period.
• If employees are unable or uncomfortable to work (because of the current climate), employers should allow them to stay at home and use regular PTO options.
• Note: until testing is widely available, employers may not be able to mandate the “quarantine” options because they won't have the ability to confirm positive testing for C19ˢᵐ. Until testing is widely available, employers will have to rely on good faith beliefs, reasonable caution, and probable cause assessments to make the best decisions for their workforce, and for their communities to the extent their employees have direct interaction with the public.
• Note: some employees may claim they were exposed to someone who was exposed to someone who tested positive for C19ˢᵐ (or make similar claims raising concerns but not providing confirmation of direct exposure). In these cases, be mindful of the balance between panic and reasonable steps to take based on a good faith belief or actual evidence. Thus, speak with the employee to confirm the degrees of separation and timing, request the employee monitor their own health and symptoms, encourage them to stay home if they become ill, and let them know if they test positive for C19ˢᵐ, or are exposed to someone who has, they will be quarantined for 14-days (or more in some cases) - and we recommend providing paid leave. Further, see above for emergency sick leave rules which states are enacting.
5. What strategies should I have in place?
First, employers should put someone in charge of regularly monitoring the CDC and your state's emergency health websites. For example, the CDC provides business-response guidance:
https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html
Second, employers should implement C19ˢᵐ policies and apply them consistently across their workforce, ensure frequent environmental cleaning of workplaces, remind employees of anti- discrimination, harassment, and retaliation policies, and actively encourage employees to stay home if feeling sick - or taking care of sick family members.
Third, because of the ‘work from home' climate, employers should ensure they have the technology in place to service its workforce population should all employees need or chose to work from home.
6. Should I restrict work travel?
Employers may limit or stop business travel. It is important for employers to frequently consult the CDC's website for current travel notices in order to stay informed and up-to-date on current travel suggestions.
7. Can I stop employees from personal travel?
No, but companies may deny time-off requests, if the basis of the denial is a legitimate business- driven reason, such as travel to known high risk areas as designated by the CDC. Employers should let their employees know that personal travel to high-risk areas may result in self-isolation (i.e. quarantine) potentially for a long period of time. Colorado, and other states, have lawful off- duty conduct statutes, which prohibit employers to discriminate against employees who participate in lawful activities while not at work, such as personal travel.
8. Can I require employees to travel if needed for the business?
Employers are allowed to require employees to travel if it is necessary to the business, although not if it violates any current laws, regulations, or mandates (such as travel to high-risk areas, whether it's C19ˢᵐ or under another advisory). As always, it is important to apply travel policies consistently to avoid actual, or the appearance of, discrimination (or favoritism).
9. Should I cancel upcoming conferences/conference attendance, regardless of location?
Cancelling upcoming conferences and events regardless of location is not yet required in the United States. However employers should use a great deal of consideration, and consult the CDC's guidelines for large group gatherings. If employers choose to hold conferences they should encourage healthy practices, such as limiting handshakes at the event.
10. How do I keep my workforce on top of Coronavirus information and company decisions?
In order to keep your workforce on top of C19ˢᵐ info and company decisions, consider sending out newsletter-style updates on the situation via emails with links to the CDC's website. Keep employees up-to-date on preventative measures that your company is taking, resources that are available around the workplace, and direct them to websites like the WHO and CDC for more detailed information about the outbreaks.
Questions, concerns, or additional guidance?
Stephen Rotter or Jennifer Gokenbach
The Workplace Counsel
303.625.6400
