Changes Continue in the Face of Pandemic, on a National and State Level

Since our last update, much has changed in the world.  The spread of coronavirus has accelerated and local, state and federal governments are going to greater extremes to try and slow the spread of the virus.

At the end of last week, the president announced the Families First Coronavirus Response Act, a sweeping regulation aimed at protecting people who must be out of work and assisting employers who lose employees temporarily for COVID-19 related issues.  The law impacts a number of federal agencies, but we’ll focus primarily on the employment-related aspects of the law for this update.

The Act impacts private employers less than 500 employees and public employers.  It also grants the Secretary of Labor the power to exempt businesses with less than 50 employees from the requirements of the Act, and exempts employees working in healthcare and “emergency responders.”  The law gives no guidance on what an “emergency responder” is, and such an employee group is not defined under DOL regulations, so employers are left to guess as to which employees could be exempt from the leave law.

Here are the most important aspects of the expanded FMLA leave for employees:

  • The law provides for 12 weeks of FMLA leave for employees who have worked for a qualified employer for at least 30 days (the final 10 weeks of which is paid at 2/3 the employee’s rate of pay);
  • The 12 weeks of leave is for the sole reason of the employee being unable to work or telework due to the need to care for a minor child if the child’s school or childcare has been closed;
  • Employees may use their own accrued leave for the first two weeks of leave that are unpaid;
  • Full-time employees are eligible for 40 hours of pay a week, and part-time employees are eligible for the number of hours the employee is normally scheduled to work in a week.

The Act also provides for two weeks of paid leave for employees of qualified employers.  The essentials of that law are as follows:

  • Qualified employers are required to pay employees up to 80 hours of sick leave, up to a maximum of $511 per day or $5,110 total if an employee is self-quarantined or seeking a medical diagnosis for COVID-19 symptoms;
  • Qualified employers are required to pay 2/3 of an employee’s rate, up to a maximum of $200 per day if an employee is caring for an individual who must quarantine or is experiencing substantially-similar symptoms as specified by the Secretary of Health and Human Services;

The law will extend at least until December 31, 2020. Employers are required to post notices of the requirements of the new law no later than March 25, 2020.  Employers who pay the leave can retain an amount of the payroll taxes equal to the amount of qualifying sick and childcare leave that is paid.  Payment is based on an employee’s regular rate, and may exclude those payments that are typically excluded from the regular rate in an overtime calculation.  Check with your attorney to see which amounts can be excluded from the employee hourly payments, especially if you are paying into employee pension or health benefit accounts as part of a total package on an hourly basis.

On Thursday, March 25, Governor Walz introduced Executive Order 20-20, Directing Minnesotans to Stay at Home.  This order was put in place not to “flatten the curve,” but to push it out as far as possible in order to keep hospital beds available to those who need them most.  That means that from March 27, 2020 at 11:59 p.m. to April 10, 2020, at 5:00 p.m., all persons in the State are ordered to stay at home or in their place of residence except to engage acceptable activities or critical sector work.

First and foremost – all workers who can work from home must do so.  Employers we have been working with have already emphasized this point with their employees and should continue to do so.  Those employees who perform critical services are only to be away from home when traveling to work or performing critical services away from home.

The list of critical services is long, and if you have not seen the list of critical services, you can check it out here.  For public employers, the Governor has mostly left the ball in the hands of those running political subdivisions to determine which employees are “performing…other governmental functions which are necessary to ensure the health, safety, and welfare of the public, to preserve the essential elements of the financial system of government, and to continue priority services as determined by a political subdivision of the State.”  However, it cannot be emphasized enough that employees should perform the work they can at home, and should practice social distancing if they must be at work.

As stated throughout this health emergency, the laws are ever-changing with the advancement of COVID-19.  It is important to keep up to date on everything related to the federal and state laws impacting employment.  If you or your organization need assistance in working with your employees under the new laws, contact the Wiley Law Office, for up-to-date advice that works.