A message to our clients ~ Legal Update COVID-19

As you are all aware, we are facing a constantly changing landscape as we move forward with measures to address the outbreak of COVID-19.  Every day, there appear to be new, significant state, federal, and local developments related to addressing the negative impacts of the coronavirus, many of which directly pertain to employers.  Below is a summary of some of these developments that have occurred to date—please feel free to reach out if you have any question related to these changes, or any other employment law need.  And please remember, this is just a general overview.  As things continue to develop and change, so will our strategies for implementation.  You should not solely rely on the information here to make employment decisions, as this landscape is constantly changing.  Instead, it is our hope this will serve to help you spot potential issues as they arise.

Governor Bullock enacted emergency rules regarding unemployment insurance (UI) benefits, which significantly expand benefits to those impacted by the coronavirus.  Some of the notable changes include:

• The “waiting week” or the 1-week period that UI claimants usually have to wait before receiving UI benefits has been waived, and now eligible claimants may receive such payment for any loss of employment.
• Any worker impacted by COVID-19 “whether it’s because they’ve been laid off, are quarantined, or need to take care of a family member” can apply for UI.  We are currently seeking clarification of this statement, but it appears that even if an employee has not technically been laid off or terminated—but rather just been sent home by their employer due to COVID-19, for example—they still may qualify for UI benefits.  This would be significant, as it would allow employees to stay on their employer-provided health plans.  Additionally, we are hearing that there are some employer health plans that are allowing for laid-off employees to remain on employer-sponsored health plans, so this might be something to check with your health insurance carrier.
• These additional claims, arising out of these emergency rules, will not be chargeable to a specific employer’s account, and the deadlines for employers to file wage reports and pay UI contributions may be delayed.

The UI Division has stated that to ensure that claimants receive benefits as soon as possible, employers should sign up for the UI e-service system at https://uieservices.mt.gov/_/, and that all employees should file claims online at www.montanaworks.gov.

On a federal level, the Senate passed a comprehensive relief package aimed at easing the negative impacts of the coronavirus, which the President signed into law.  The bill addresses a wide range of topics, but the two areas that are most important for employers are provisions related to an expanded emergency provision of FMLA and paid sick leave.  Here are some key points that the majority of employers need to know:

Emergency FMLA Expansion Act

Employer coverage and employee eligibility:  This applies to all employers with fewer than 500 employees.  There is the possibility that the Secretary of Labor will make an exception to this for businesses with fewer than 50 employees if the required leave would jeopardize the viability of their business.  There is also the possibility that the Secretary of Labor will exclude certain health care providers and emergency responders.  However, the regulations and rules for such exceptions have not yet been promulgated. Employees may be eligible if they have worked at least 30 days prior to the designated leave.  Employers of health care providers or emergency responders may elect to exclude such employees from this Act.

Reason for emergency leave: Any eligible employee may take up to 12 weeks of leave but only to allow an employee, who is unable to work or telework, to care for the employee’s child (under 18 years of age), if the child’s school or childcare is unavailable due to a public health emergency.  Unlike regular FMLA, a portion of this leave will be paid leave.  The first 10 days of emergency FMLA may be unpaid.   During this 10-day period, an employee may choose to use any accrued leave (including the Paid Sick Leave discussed below).  After that, the employer must generally pay full-time employees at 2/3 their regular rate of pay for the number of hours that they regularly would have been scheduled.  There are further instructions for calculating the regular rate of pay for part-time employees, that we can help you with.  The act has caps of $200 a day and $10,000 total per employee.

Job protected leave: employers with 25 or more, but less than 500 employees, will have the same obligations under regular FMLA, to give employees their same job back, or an equivalent position, upon return to work.  Employers with less than 25 employees are generally excluded from this requirement if the position no longer exists after the leave expires because of circumstances related to a public health emergency.  However, employers invoking this exclusion have to make reasonable attempts to return the employee to an equivalent position and the employer also has to make reasonable efforts to return the employee to work for up to one year following the employee’s leave.

We are still unpacking all of the implications with this FMLA Emergency Expansion and recommend that you contact us with questions as you begin to attempt to implement this.

Emergency Paid Sick Leave Act

Covered reason for leave: Employees who are unable to work or telework may take paid sick leave because the employee is unable to work because he/she is:

1. Subject to federal, state, or local quarantine or isolation order related to COVID-19;
2. Advised by a health care provider to self-quarantine due to COVID-19 concerns;
3. Experiencing symptoms related to the virus and seeking medical diagnosis;
4. Caring for an individual subject to a federal, state, or local quarantine or isolation order or advised by a health care provider to self-quarantine due to the virus;
5. Caring for the employee’s child, if the child’s school/daycare is unavailable due to the public health emergency; or
6. Experiencing any other substantially similar condition specified by the Sec. of Health and Human Services in consultation with the Sec. of the Treasury and Sec. of Labor

There is an optional exception for employers who are healthcare providers or emergency responders.

Coverage: All employers with fewer than 500 employees are required to provide full-time employees (regardless of how long they have worked there) with 80 hours of paid sick leave at the employee’s regular rate of pay (or 2/3 pay if the leave is for reasons 4, 5, or 6 above).  This pay is capped at $511 a day and up to $5,110 total per employee for their own use, and at $200 per day and up to $2,000 total to care for others and any other substantially similar condition.  This sick leave will not carry over the following year, and may be in addition to any paid sick leave currently provided by employers.  A business employing fewer than 500 employees is required, at the request of the employee, to pay a full-time employee for 80 hours of mandated emergency paid sick leave instead of the initial 10 days of unpaid leave permitted by Emergency FMLA.  Employers can’t require an employee to use other paid leave provided by the employer before using paid sick time under this act.  Employers of health care providers and emergency responders may elect to exclude such employees from this Act.

Health care provider:  The Act does not define emergency responders.  However, health care providers are defined as:  a doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the State in which the doctor practices, or any other person determined by the Secretary of Labor to be capable of providing health care services.

Posting requirement: this act requires employers to post a notice of this Act (click here for a link to the poster).

Prohibited Acts:  Employers cannot discharge, discipline or discriminate against an employee who (1) takes this leave; and (2) has filed any complaint or participates in any proceeding related to this Act.

Violations:  Violations will be treated similarly to wage and hour violations.

Unfortunately, employers are going to have to foot the up-front and immediate costs of these two type of paid leave, but the bill does provide for a series of refundable tax credits.  You should consult with an attorney or accountant regarding the applicability and type of these tax credits.

We are staying on top of developments as they happen.
Changes are happening at lightning speed and you can count on us to help you through these uncertain times.
We look forward to hearing from you.

• Employee contract negotiation and drafting
• Employee policy development, including handbook drafting and review
• Employee screening and hiring practices
• Separation agreements
• Employee discipline and termination
• Employee classification
• Employer risk management
• Employee leave issues
• Employment litigation and arbitration, including wrongful discharge defense
• Employment discrimination defense, including retaliation, sexual harassment, disability, race and age
• Reasonable Accommodation issues
• Workers’ compensation defense
• Family Medical Leave Act (FMLA)
• Wage and hour compliance
• Alternative dispute resolution
• Management and Employer Labor relations, including collective bargaining agreement negotiation, drafting, and arbitration
• Montana Human Rights Act
• NLRB elections and unfair labor practices

Proactive Legal Guidance
Prevention is the best medicine. To help companies avoid employment related legal battles, we advise human resource and business professionals on everyday employment law issues, conduct workplace training sessions, workplace investigations for employers and host free employment law seminars.

Employment litigation defense

We have extensive experience defending employers who have been accused of wrongfully terminating or discriminating against an employee.  Employment claims often stem from allegations of failure to have good cause for terminations, discrimination, or harassment.  These claims can also include constructive discharge, which involves an employee being forced to quit due to unbearable working conditions.  We can help in all of these areas, as well as with alternative dispute resolution methods such as arbitration or mediation.

We often serve as mediators in employment disputes hosting mediations and settlement conferences. Video conferencing is also available for those who are not able to come to our offices.