People matter. They are the heart of every business. This webinar focused on people issues.

On the SobelCo webinar held April 17, 2020, “It’s All About the People,” attorneys Catherine Wells and Arianna Mouré from CSG and Ken Rosenberg from Fox Rothschild joined SobelCo’s Ken Bagner in a deep dive discussion covering some of the most difficult and complicated issues facing employers and employees under the Families First Coronavirus Response Act (FFCRA) which includes the Expanded Family and Medical Leave Act as well as the Emergency Paid Sick Leave Act.

The FFCRA is complicated, but there were some critical, basic take-aways:

  • All employers with less than 500 employees (companies comprised of one to 499 employees) are required to comply. Those with 500 or more employees are not required to comply.
  • The Emergency Paid Sick Leave Act guidelines are applied to all employees
  • The Expanded FMLA rules apply to all employees who have worked at the company for 30 days or more
  • Employees who are quarantined by the government or by a health practitioner’s directive are eligible
  • Employees who are diagnosed with COVID-19 or are experiencing common symptoms of COVID-19 are eligible
  • Employees who are caring for someone who is diagnosed with or is experiencing common symptoms of COVID-19 are eligible
  • Employees who are out of work because they are caring for a child whose school is closed or whose care taker cannot fulfill their job because of coronavirus related issues are eligible. NOTE: in a major departure from the standard FMLA guidelines, the employees will be eligible even if they are caring for someone who is not a family member
  • FFCRA is applicable ONLY from April 1, 2020 – December 31, 2020. If the paid leave period extends beyond December 31, 2020, it is NOT covered. Benefits must be used within that strictly enforced time period
  • The funds are available for use immediately
  • Employers cannot ask the employees to use the paid leave benefits offered by the employer either before or concurrently with the benefits provided under FFCRA
  • Employees cannot take intermittent sick leave without their employers permission
  • Employers may ask for proper documentation from employees including a signed statement with the dates requested and the qualifying reason for the leave of absence as described above
  • Upon return to the workplace, there is a precedent set under FMLA for employers to request a doctor’s note and it will most likely become accepted practice to take employees’ temperature upon entering the building.

Switching gears, the panelists addressed the very complex issue of teleworking.

  • Despite the prominence of all the acts and guidelines that erupted in response to the pandemic, business owners cannot forget the Fair Labor Standards Act. It guides employers with regards to the payment of wages –including over time – for exempt and nonexempt employees - based on hourly or salaried status based on an evaluation of duties.
  • It is key to note that individuals (administrative personnel) paid hourly who are working remotely may be entitled to overtime pay. In these situations it is essential to record their time accurately and compensate them correctly.
  • Under such a challenging economic landscape, employers may be seeking ways to reduce their salaries, including cutting wages. This needs to be handled consistently and carefully so that the actions taken do not violate the Fair Labor Standards Act.
  • Another critical issue facing employers today who are operating essential businesses offering (services and products) occurs when an employee is fearful and refuses to come to the workplace. Some employers are increasing hourly wages as an incentive for employees. If this doesn’t successfully solve the situation, the employer must conduct a carefully documented discussion with the employee to determine if the employee is eligible for protective leave. If the employee refuses to return to work, there may be a determination that this is a voluntary separation.

The first poll question asked during this webinar was, “Did you furlough any employees in response to the pandemic?”21% of the respondents said yes and 60% sad no.

So, what is the difference between a furlough and a lay off? The distinguishing factor is the permanency factor:

  • A furlough situation is expected to be a temporary situation, one where employees expect to return after the furlough expires and there is no need for onboarding or paper work.
  • On the other hand, a layoff is typically a permanent move. In this case, COBRA notice needs to be issued. It was suggested that the employer check the definition of separation according to the company’s health insurance policy to determine the proper steps regarding COBRA and other issues. 

The second poll question asked the respondents, “Are you considering furloughing employees over the next eight weeks?” While 9% said yes, 21% said no and 43% are considering it, but 27% don’t have to go through the process at all.

The last issue covered during the webinar concerned the NJ and Federal WARN ACT. If an employer is moving to a permanent mass lay off or a total closing of the facility affecting more than one-third ofthe employees, they will be required to issue a WARN statement and alert the Department of Labor and the State Workforce Development Agency and any unions representing the employees. To avoid potential liability, the publication of WARN notices will be required.

In New Jersey, eligibility requirements for WARN have changed and the implications regarding severance pay and other challenges, impacting requiring notices. At the Federal and state level, unusual and unforeseen circumstances leading to business disruption such as a fire, war, a natural disaster do not require a WARN notice.The panelists agreed it is important to start planning now to be ready to comply.