About 3.3 million people filed unemployment claims in the U.S. during the week ending on March 21. For context, that’s FIVE TIMES the ignominious record previously set in 1982.
Employment challenges in the time of coronavirus
Clearly, businesses of all shapes and sizes are executing unprecedented layoffs and scrambling to understand how employment laws and regulations govern their rapidly changing operational structures. For most businesses, flourishing in 2020 will require:
- Knowing, understanding, and competently applying newly enacted federal leave laws concerning COVID-19;
- Implementing or revising telework policies to best maintain company productivity for a virtual workforce;
- Implementing or revising data security policies to best prevent against data breaches for a virtual workforce;
- Implementing or revising privacy policies to best prevent against HIPAA violations and other safeguards for employee health information;
- Implementing or revising site specific policies to comply with new OSHA rules and other workplace safety requirements; and,
- Establishing for company management clear guidelines on furloughs, pay reductions, reclassifications, and terminations to prevent against downstream discrimination lawsuits.
Here are a handful of laws and regulations that businesses should be familiarizing themselves with immediately.
One of the most significant early acts of Congress has been passage of the Families First Coronavirus Response Act (FFRCA), as it applies to a large portion of the U.S. workforce. This new Act includes two sections applicable to employee working conditions and pay in response to the current COVID-19 outbreak. These new provisions will take effect on April 2, 2020 and apply through December 31, 2020.
These new paid leave provisions could apply to part-time and full-time employees in several ways. For example, they could include:
- Two weeks (up to 80 hours) of paid sick timeat the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
- Two weeks (up to 80 hours) of paid sick timeat two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
- Up to an additional 10 weeks of paid family leaveat two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
If an employee utilizes any of this leave, his/her job will be protected during leave and will be available upon return with certain exceptions. These new paid leave requirements may not apply to a small business with fewer than 50 employees if providing them would put future viability of the business at risk. The process for seeking such a small business exception has not yet been defined.
Pay rates that employers are obligated to pay to employees under FFCRA depend upon the conditions under which employees take leave, whether for self-care, care for another, or for parental care in response to school closures. All payments made to employees invoking this protected leave will be reimbursed to paying businesses initially in the form of payroll tax credits, and potentially in the form of direct payments once the payroll tax credits have been exceeded within a given quarter. The exact process for reimbursement has not yet been defined.
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