Requirements for employers during the COVID-19 pandemic: State and federal emergency legislation and executive orders

Yesterday, March 19, 2020, President Trump signed into law emergency legislation meant to provide protections to American workers affected by the novel coronavirus and its related fall-out.

Additionally, New Hampshire Governor Chris Sununu has issued several emergency orders pursuant to RSA 4:45 and RSA 4:47.

These executive orders and national legislation are rapidly changing the landscape for New Hampshire businesses and employers. This blog is meant to provide a brief summary of the changes in law and their impact on New Hampshire businesses.

If you are a New Hampshire business with questions about these topics, contact us through our website or by phone at 603-883-0797. Welts, White & Fontaine, PC is continuing to accept new clients and provide advice and counsel during this crisis. Our attorneys are available remotely and stand ready to meet with you telephonically, virtually, and at your convenience.

NEW HAMPSHIRE LAW

Governor Sununu entered the following emergency order on March 17, 2020:

Emergency Order #5: Individuals who are unable to work or who have reduced hours due to the COVID-19 pandemic will have immediate access to unemployment benefits. Anyone in the following situations will now be eligible for state unemployment: If your employer temporarily closes due to COVID-19; Individuals that need to self-quarantine or are directed to quarantine at the instruction of a health care provider, employer or government official; Individuals that need to care for a family member that has COVID-19 or is under quarantine; Individuals that need to care for a dependent because of school closures, child care facility closures or other similar types of care programs; Self-employed individuals that are temporarily unable to operate their business because of any of the above listed situations will also be eligible. Please visit www.nhes.nh.gov or call 603-271-7770 for more information.

FEDERAL LEGISLATION

On March 18, 2020, the House and Senate both passed the Families First Coronavirus Response Act (FFCRA) and President Trump signed it into law. It goes into effect in 15 days. Along with other things, this law expands FMLA for coronavirus-specific reasons through December 31, 2020.

A. Employers Subject to this Law

Any person engaged in commerce or in any industry or activity affecting commerce who employs fewer than 500 employees. This new definition excludes large employers (500 or more employees).

B. Eligible Employees

Persons who have been employed by a covered employer for 30 calendar days. This means newly hired, temporary, part time, and seasonal employees may be eligible for COVID-19 FMLA leave. 

C. Types of Leave

Sick Leave:     Two weeks; and

FMLA leave:   12 weeks job-protected leave (can include the two weeks of sick leave).

D. Reasons for leave

Employee must be unable to work or telework and needs leave because:

  1. Federal, State, or local quarantine or isolation order.
  2. Advised by health care provider to self-isolate.
  3. Experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
  4. Caring for an individual subject to quarantine/isolation order or who has been advised by health care provider to self-isolate.
  5. Caring for son or daughter whose school is closed or child care provider is unavailable.
  6. Experiencing “any other substantially similar condition specified by the Secretary of Health and Human Services in conjunction with the Secretary of the Treasury and Secretary of Labor.” 

SICK LEAVE UNDER EMERGENCY LEGISLATION

Full-Time Employees:          Employers must provide full-time employees with 2 weeks (80 hours) of paid sick leave for the above specific circumstances related to coronavirus. This is in addition to any other paid time off already provided.

Part-time employees:            Employers must provide part-time employees with 2 weeks (equal to the number of hours they work, on average, over a 2-week period) of paid sick leave for the above specific circumstances related to coronavirus. This is in addition to any other paid time off already provided.

Compensation During Sick Leave:

For leave taken under reasons 1-3 above:      Full regular rate of pay, capped at $511 per day or $5,110 total.

For leave taken under reasons 4-6 above:      No less than 2/3 regular rate of pay, capped at $200 per day or $2,000 total

FMLA LEAVE UNDER EMERGENCY LEGISLATION

Employees receive 12 weeks of job-protected paid FMLA leave due to Coronavirus.

First 2 weeks (or 14 days):   Employers are not required to pay the employee, and employer cannot require the employee to use sick leave. BUT, employee can use the sick leave that has been allotted above.

After 2 weeks (or 14 days):  Employer must pay employee during the remainder of the leave (up to another 10 weeks of paid leave). 

Compensation:                      No less than 2/3 regular rate of pay, capped at $200 per day or $10,000 total

If employee works a varied schedule, employer may pay using employee’s average scheduled hours over the prior six months (including any leave hours) or the employee’s reasonable expectation for scheduled hours at the time of hire.

EXCEPTIONS

  1. Employers with less than 25 employees:        Do not have to guarantee a job for the employee at the end of the leave period, if the employee’s position is eliminated as a result of the public health emergency. However, the employer must make a reasonable effort to restore the employee to an “equivalent” position when the employee is set to return. If no equivalent position is available, employer must make reasonable efforts to contact the former employee if an equivalent position becomes available in the 12 months following the leave’s expiration. For employers with 25 or more employees, the job reinstatement guarantees remain in place.
  1. US Department of Labor can issue regulations “for good cause” to exclude certain health care providers and emergency responders from the definition of employees eligible to take Covid-19 leave.
  1. US Secretary of Labor can issue regulations “for good cause” to exempt small businesses with fewer than 50 employees from the requirement to offer Covid-19 leave if offering such leave would jeopardize the viability of the business as a going concern. [To date no such regulations have been issued.]

REIMBURSEMENTS TO EMPLOYERS

Employers will receive a “dollar-for-dollar” tax credit for wages paid as either paid sick leave or paid FMLA leave, up to maximum caps (for each type of leave).

The amounts will be credited against the employer’s FICA payroll tax payments on wages due to all employees, even those employees who did not take any leave.

If the credits exceed the amount due, the excess is refunded to the employer and must be included in the employer’s gross income.

NOTICE REQUIREMENTS

Employer must post and keep posted, in conspicuous places, a notice regarding emergency paid sick leave that the Department of Labor will issue shortly.

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If you would like to speak with one of our attorneys regarding employment law issues caused by the novel coronavirus pandemic, contact us by clicking here or by calling (603) 883-0797.

Author: Courtney Curran Vore

This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion.