Employment Law Bulletin | April 13, 2020

Small Employer Exemption Under the FFCRA: Does it apply to my business?

Although the Families First Coronavirus Response Act (FFCRA) contains an exemption for employers with fewer than 50 employees, employers should be aware that this exemption is 1) optional and 2) extremely limited.  Specifically, the FFCRA allows small employers to elect an exemption from its requirement to provide Emergency Paid Sick Leave (EPSL) and/or Emergency Family Medical Leave (EFML) benefits to eligible employees, but the exemption only applies if the following conditions are met:

  1. The employee’s leave is to care for the employee’s child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19, AND
  2. Providing EPSL or EFML would jeopardize the viability of the business as a going concern.

In order to determine whether the second condition is met, an “authorized officer” of the business must determine that at least one of the following criteria apply:

  1. The leave would result in expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity; OR
  2. The employee or employee’s absence would entail a substantial risk to the financial health or operational capabilities of the business because of the employee’s specialized skills, knowledge of the business, or responsibilities; OR
  3. There would be insufficient employees able, willing, and qualified at the time and place needed to perform labor or services provided by the employee, and these labor or services are needed for the business to operate at a minimal capacity.

Once the applicable criteria have been identified, the employer must affirmatively elect the exemption by documenting which of the criteria was relied upon in making the determination for exemption eligibility.  The documentation should not be submitted to the Department of Labor or any other government agency, but instead retained in the employer’s records.  Other records related to time off requests for EPSL and EFML must be retained for four years, so we recommend the exemption documentation be retained for the same period of time.  Although the regulations do not specify that additional supporting documentation is required, employers should retain independent evidence that supports their finding that one or more of the exemption criteria apply.

A small business employer who determines that it can meet one or more of the above criteria is exempt from providing EPSL or EFML benefits for requests for time off related to a child’s school or childcare closure or unavailability.  While the exemption applies to all EFML benefits, an exempt employer must still provide EPSL for any other qualifying reason.  Exempt employers must also post the required FFCRA notice, which means being prepared for questions when and if the employer denies employee benefits as a result of electing the exemption. See our March 19 and March 25 Bulletins for more information on qualifying reasons for EPSL and required postings.

If you think the small business exemption applies to your business, we recommend that you evaluate your business under the above criteria and carefully document your determination as soon as possible so you are prepared to respond to employee requests for leave.

If you need help evaluating the small business exemption, have questions about documenting your decision, or if you believe the exemption applies to some, but not all of your employees, contact an SMT employment attorney. We are working remotely to help you navigate this crisis and to advise you about the emergency aid programs available to your business and your employees.  In addition, all SMT attorneys are available to assist you with your legal needs, whether or not they relate to COVID-19.  You may email any attorney through our website at www.www.smlaw.com or contact us at 707-524-1900.  We are here to help.

Kari J. Brown

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | April 2, 2020 (CARES Act)

COVID-19:  Assistance to Small Businesses and Workers Under the CARES Act

The Coronavirus Aid, Relief and Economic Security (CARES) Act, enacted on Friday, March 27, 2020, creates a half-dozen new programs to help distressed businesses and workers deal with COVID-19 and related shutdowns.  These programs include forgivable loans, tax credits, and expanded unemployment insurance.  While we are still waiting for regulations, we have provided general information about this complex Act below.

Paycheck Protection Program

Eligibility
The Paycheck Protection Program (“PPP”) amends the Small Business Act (“SBA”) and creates a new forgivable loan option designed to help small employers pay their expenses and maintain their workforce during the COVID-19 crisis.  For an employer to be eligible for a PPP loan, the employer must have less than 500 employees or meet the SBA size standard for its specific industry.  These rules differ for some types of employers.  For example, a hospitality or food services employer can qualify for a loan if it employs fewer than 500 workers per physical location.  Self-employed individuals and “gig economy” individuals are also eligible, as are certain nonprofits, including 501(c)(3) organizations and 501(c)(19) veteran organizations, and tribal business concerns with under 500 employees.

Maximum Loan
The amount of the loan for an eligible employer is 2.5 times the employer’s average monthly “payroll costs,” plus the amount owed on any existing coronavirus-related Economic Injury Disaster Loan (EIDL) held by the employer, up to a maximum of $10 million.  While the CARES Act states that average monthly payroll is based on “payroll costs incurred during the 1-year period before the date on which the loan is made,” the sample loan application form posted on the SBA’s website indicates that it is based on average monthly payroll for 2019.  Hopefully, the regulations will clarify this discrepancy.  Either way, there is an exception for seasonal employers, which can elect a different time frame to measure their average monthly payroll costs.

Under PPP, “payroll costs” include the sum of payments for: salary, wage, commission, or similar compensation; cash tips; vacation, parental, family, medical, or sick leave; allowance for dismissal or separation; group health care benefits, including insurance premiums; retirement benefits; and State or local tax assessed on the compensation of employees.

“Payroll costs” do not include: compensation of an individual employee in excess of an annual salary of $100,000; Social Security and Medicare taxes, federal income tax required to be deducted; compensation of an employee whose principal place of residence is outside of the United States; or payments of other coronavirus-related benefits, including sick leave or family leave wages for which a tax credit is allowed under the Families First Coronavirus Response Act (FFCRA).

Loan Application And Issuance
The SBA will make the loans available through existing lenders.  Instead of determining repayment ability, the CARES Act requires lenders to: determine if the employer was operational on February 15, 2020; determine if the employer had employees for whom it paid salaries and payroll taxes, or a paid independent contractor; and certify that: (1) the employer needs a loan to support its operations; (2) the employer will use the loan to retain its workers, maintain payroll, or pay other qualifying expenses; (3) the employer does not have another application for the same purpose pending; and (4) the employer has not already received a loan covering the same period.

On March 31, 2020, an update to the SBA’s website stated that lenders may begin processing loan applications as soon as April 3, 2020.  In the meantime, prospective borrowers can begin preparing their applications by completing the sample application posted on the SBA’s website, at https://www.sba.gov/document/sba-form–paycheck-protection-program-ppp-sample-application-form, and by collecting the information described in the instructions.  The PPP program will be available through June 30, 2020.

Use of Loan Funds
The loans can be used for payroll costs (as defined above); payments of interest (not principal) on mortgage obligations; rent; utilities; and payments of interest on debt obligations incurred before February 15, 2020.  However, the loans may not be used to pay the costs of paid leave that employers are required to provide under the FFCRA.

Loan Forgiveness
Borrowers are eligible for loan forgiveness in an amount equal to the amount spent by the borrower during the 8-week period after the origination date of the loan on payroll costs (as defined above); payments of interest (not principal) on mortgage obligations; rent and utilities.  The amount of loan forgiveness is reduced if there are reductions in the workforce or payroll during the 8-week period.

Workforce reductions
The amount of loan forgiveness is reduced if there is a reduction in the number of full-time equivalent employees (“FTEs”) during the eight-week period, relative to one of two alternative periods of time, at the election of the borrower (the two periods are February 15, 2019 through June 30, 2019, and January 1, 2020 through February 29, 2020).

Payroll reductions
The amount of loan forgiveness is reduced by the amount of any reduction in an employee’s total salary or wages during the eight-week period that exceeds 25% of the employee’s total salary or wages during the most recently completed calendar quarter when the employee was employed, before the eight-week period.  For purposes of this provision, only employees who did not receive annualized compensation at any time in 2019 in excess of $100,000 are considered.

Alert
Information released by the SBA on March 31, 2020 states it is expected that the PPP regulations (which have not yet been issued) will include a requirement that at least 75% of the forgiven amount must have been used for payroll.  Because the amount of forgiveness is based on costs incurred or payments made during the eight-week period following loan origination, the amount of loan forgiveness available to an employer with little or no payroll incurred or paid during those eight weeks could be significantly impacted.  We will need to see what the regulations actually say once they are issued.  The most recent information indicates that the regulations are expected to be released by the end of this week.

Borrowers will be able to apply for forgiveness beginning eight weeks after the date of loan origination.  Under the CARES Act, the employer will be required to submit the following documentation, together with the application for forgiveness:

  • Documentation verifying the number of full-time equivalent employees on payroll and pay rates for the eight week period following the effective date of the loan, and for the chosen comparison period, including:
    • Payroll tax filings reported to the Internal Revenue Service; and
    • State income, payroll, and unemployment insurance filings;
  • Documentation verifying payments on covered mortgage obligations, payments on covered lease obligations, and covered utility payments, including cancelled checks, payment receipts, transcripts of accounts, or other documents;
  •  A certification from the borrower that:
    • The documentation presented is true and correct; and
    • The amount for which forgiveness is requested was used to retain employees, make interest payments on a covered mortgage obligation, make payments on a covered rent obligation, or make covered utility payments; and
  •  any other documentation the Administrator determines necessary.

Amounts forgiven are not included in taxable income.

The CARES Act provides that any loan amount not forgiven will be carried forward as an ongoing loan, with a maximum term of 10 years, and a maximum 4% interest rate.  However, bankers in touch with SBA regulators have advised that these terms are expected to change; the maximum term will be 2 years, and the maximum interest rate will be 0.5%.

Expanded Unemployment Benefits

The CARES Act provides financial support for states and additional support for individuals through an additional federal unemployment benefit, on the top of weekly state unemployment benefits.  Specifically, an individual who qualifies for unemployment benefits is entitled to a weekly payment of $600, in addition to the unemployment benefits to which the individual is otherwise entitled under State law.  The CARES Act also expands the eligibility requirements so that persons who are self-employed, are seeking part-time employment, do not have sufficient work history, and many others who otherwise would not qualify for regular unemployment or extended benefits, including “gig” workers, and independent contractors, are eligible for the $600 weekly payment.  The $600 weekly payment is a flat amount that will be distributed to all individuals receiving unemployment benefits, including full benefits and, in states that provide them, partial unemployment benefits.

Employee Retention Tax Credit

The CARES Act offers tax credits to employers that have seen their operations shuttered or partially shuttered because of COVID-19.  The credits can go as high as 50% of qualified wages paid to an employee between March 13, 2020, and the end of the year.  These credits max out at $10,000 per employee and apply only to employment taxes, such as FICA, federal unemployment taxes, and Social Security taxes.  The credits cannot be taken with other coronavirus-related benefits, such as credits for paid leave under the FFCRA or Paycheck Protection loans.

To qualify for the credits, the employer must experience (a) a full or partial shutdown because of a government order related to COVID-19, or (b) a decline in revenues of 50% or more from the same period last year.  Qualifying employers with 100 employees or fewer can take a credit for all qualifying wages.  Larger companies with more than 100 employees can also take a credit, but only for wages paid to employees who are not working because of reasons (a) or (b).

Emergency EIDL Grants

Under the CARES Act, a borrower with an existing Economic Injury Disaster Loan (EIDL) related to the coronavirus crisis can apply for a PPP loan, with an option to refinance the EIDL loan into the PPP loan.  Existing EIDL borrowers not related to the coronavirus crisis are also eligible to apply for a PPP loan for payroll assistance.

An applicant for an EIDL loan can request an Emergency Grant of up to $10,000 to maintain payroll, provide paid sick leave, and to service other debt obligations.  The advance must be distributed within three days.  Applicants will not be required to repay advance payments, even if they are subsequently denied an EIDL loan.

The emergency EIDL grant award of up to $10,000 would be subtracted from the amount forgiven under any PPP loan.

While the CARES Act can be of huge help to a business, it is complex and there are important decisions to be made.  If you have questions, please contact an SMT attorney through our website at www.www.smlaw.com or by phone at 707-524-1900.

Terry Sterling

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | April 1, 2020 (Extended Orders)

County Health Officers Extend and Tighten Shelter in Place Orders

Yesterday, several Bay Area County Health Officers extended their Shelter in Place (SIP) orders to May 3, 2020 (beyond the original April 7, 2020 expiration date).  The Orders further clarify, strengthen, and extend certain terms of the prior SIP orders to increase social distancing and further reduce person-to-person contact in order to further slow transmission of the Novel Coronavirus Disease 2019.

Of vital importance to businesses, the orders tighten the definition of “Essential Business” and make it clear that even an “Essential Business” can only operate under limited circumstances during the SIP orders.  Below are some of the key points of the Sonoma County Order as it relates to Essential Businesses.  Similar wording can be found in other Bay Area county orders.

  • Essential Businesses must “maximize the number of employees who work from home.”
  • Essential Businesses may only assign those employees who cannot perform their job duties from home to work outside the home.
  • Businesses that include an Essential Business component at their facilities alongside non-essential components must, to the extent feasible, scale down their operations to the Essential Business component only.  There is an exception for mixed retail businesses that are otherwise allowed to operate under the Order; they may continue to stock and sell non-essential products.

The Orders make clear that “Essential Businesses” cannot conduct all activities, but must limit their work scope to “Essential Activities” and “Minimum Basic Operations.”  See the Order that applies to your business for definitions of these terms.  Links are provided below.

The revised Sonoma County Order also requires employers to prepare, post and implement a Social Distancing Protocol at each of their facilities where they are maintaining operations.  A sample protocol can be found at https://socoemergency.org/wp-content/uploads/2020/03/Appendix-A-Social-Distancing-Protocol.docx.  The posting must be completed by 11:59 p.m. on April 2, 2020.  Other counties have similar protocol and posting requirements.

In addition, the updated Sonoma County order includes Frequently Asked Questions which provide guidance about interpretation of the Order.  The FAQs are located at the very end of the Order.

Sonoma County: https://socoemergency.org/order-of-the-health-officer-of-the-county-of-sonoma/ (through May 3, 2020)

Marin County: https://coronavirus.marinhhs.org/sites/default/files/2020-03/marin_final-superseding-shelter-in-place-order.pdf (through May 3, 2020)

City and County of San Francisco: https://www.sfdph.org/dph/alerts/files/HealthOfficerOrder-C19-07b-ShelterInPlace-03312020.pdf (through May 3, 2020)

Alameda County: http://www.acphd.org/2019-ncov/shelter-in-place.aspx (through May 3, 2020)

Mendocino County: https://www.mendocinocounty.org/home/showdocument?id=33279 (until rescinded)

Napa County:  https://www.countyofnapa.org/DocumentCenter/View/16687/3-18-2020-Shelter-at-Home-Order (currently only through April 7, 2020)

Contra Costa County:  https://www.contracosta.ca.gov/DocumentCenter/View/64727/2020-0331-Health-Officer-Order-COVID19 (through May 3, 2020)

The County Orders are complex, but contain a clear and simple message – we are in a serious health crisis.  Employees need to work remotely, and if that is not possible, there are only limited situations in which businesses can allow their employees to continue working outside the home.  While these Orders are necessary for the public good, we understand they are extremely disruptive to businesses.

SMT employment attorneys are all working remotely to help you navigate this crisis and to advise you about the emergency aid programs available to your business and your employees.  In addition, all SMT attorneys are available to assist you with your legal needs, whether or not they relate to COVID-19.  You may email any attorney through our website at www.www.smlaw.com or contact us at 707-524-1900. We are here to help.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | March 27, 2020

U.S. Department of Labor Clarifies Employer’s Obligations Under the FFCRA

The United States Department of Labor (DOL) recently issued guidance about the emergency paid sick leave and emergency family medical leave benefits required by the Families First Coronavirus Response Act (FFCRA).  You can find them at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

While FAQs are not binding precedent, they are the best indication we have at this point about implementation of the new law.  We recommend that you review the FAQs carefully because they may impact your decisions about permanent layoffs and temporary layoffs/furloughs before the FFCRA becomes effective on April 1, 2020.

The FAQs have also informed our advice to employers.  If you’ve spoken with an SMT employment attorney since the FFCRA was enacted on March 18, you know that our advice was that the FFCRA benefits applied to any employee who was still employed on April 1, even if the employee was on a temporary layoff/furlough.  This advice was provided when we didn’t have any guidance and was the most conservative approach to avoid employer liability in a time of unchartered territory.  These new FAQs indicate a different interpretation by the DOL, so we now have good news for employers – the emergency benefits do not apply if your employees are off work, whether permanently or temporarily, due to lack of work.

Please contact an SMT employment attorney if you have questions.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | March 26, 2020

U.S. Department of Labor Advances Effective Date of the Families First Coronavirus Response Act to April 1, 2020 – Not an April Fool’s Joke

In these unprecedented times, we have unprecedented things happening on Capitol Hill.  When President Trump signed the Families First Coronavirus Response Act (FFCRA) into law on March 18, 2020, it was to become effective on April 2, 2020.  However, the U.S. Department of Labor recently announced that the FFCRA will take effect on April 1, 2020 and will apply to employee leaves taken between April 1, 2020 and December 31, 2020.  For employers trying to decide whether to permanently lay off employees, this means the effective date of the layoffs must be no later than March 31, 2020, or they will need to provide the FFCRA benefits to eligible employees.  On the bright side, employers who provide FFCRA benefits to their employees are eligible for immediate tax credits.  Please consult your tax advisor for information regarding those credits.

The FFCRA requires employers of fewer than 500 employees to provide up to two weeks of emergency paid sick leave and up to ten weeks of emergency family medical leave to employees who take time off work for reasons outlined in the Act.  For more details, see SMT’s March 19, 2020 Employment Law Bulletin.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | March 25, 2020  (Postings)

US Department of Labor Issues Required Families First Coronavirus Response Act Postings

On March 25, 2020, the United States Department of Labor issued workplace posters required by the Families First Coronavirus Response Act (FFCRA).  One poster applies to federal employees, while the other applies to all other employees.

Employers of 1-499 employees must post the poster in the workplace and issue it to all current employees working off site (including those working remotely).  This can be done by email, U.S. Mail, or posting on a Company intranet.  “Current employees” include those actively working, as well as employees furloughed or temporarily laid off.  Notice to employees who have been permanently laid off is not required.  The posters can be found at the following links:

https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Federal.pdf
https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

The Department of Labor also issued FFCRA Frequently Asked Questions regarding the posters:  https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions, and the employer paid leave requirements:  https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave.

Please reach out to an SMT employment attorney if you have questions about how the FFCRA applies to your business.  We are here to help you through this challenging time.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | March 25, 2020

Proposed Coronavirus Aid Relief and Economic Security Act

Early this morning, the Senate reached agreement on a roughly $2 trillion stimulus package that provides financial assistance and relief to workers and businesses impacted by the coronavirus pandemic.  This article provides a broad summary of the measures included in the proposed legislation, and a more detailed discussion of the proposed loan program for small businesses.

This is proposed legislation. The bill is still being drafted, so the specific terms are not yet available.  A vote in the Senate is expected this afternoon, after which the House of Representatives will need to approve the legislation.  The earliest that could happen is Thursday, March 26, 2020, but House Democrats have not provided a firm timeline for a vote by the House.

The $2 trillion stimulus package includes the following relief measures if the legislation is passed as currently written:

Loans for Distressed Industries

The bill authorizes more than $500 billion in loans and loan guarantees for distressed businesses, cities and states, including $150 billion for state and local emergency aid, more than $50 billion for airlines, and $17 billion for firms that are deemed important to national security.  Lending decisions will be overseen by an independent inspector general and an oversight board, and the bill specifically provides that these loans cannot go to firms controlled by President Trump, other White House officials or members of Congress.

Small Business Loans

The bill would provide $300 billion to support guaranteed loans to eligible small businesses (those with 500 or fewer employees, including nonprofits) to cover payroll and debt obligations.  These loans would be immediately available through existing SBA-certified lenders, including banks, credit unions, and other financial institutions, and through additional lenders brought into the program by the SBA.  Determinations on borrower eligibility will be made by local lenders, without going through all of the SBA’s channels.

The maximum loan amount would be $10 million through December 31, 2020, with the size of the loan based on an applicant’s average monthly payroll; mortgage, rent, and utility payments; and other debt obligations over the previous year.  All loan fees would be waived.

Businesses that receive this loan would be eligible for loan forgiveness in an amount equal to the payroll cost and costs related to debt obligations for the period of March 1, 2020, through June 30, 2020.  The amount of the loan eligible for forgiveness would be reduced proportionally by the number of employees laid off during this period relative to the borrower’s prior employment levels.  For the purposes of determining forgiveness amounts, payroll costs will exclude the compensation of (i) employees in excess of $100,000 in annualized compensation and (ii) qualified sick leave and qualified family leave wages enacted by the Families First Coronavirus Response Act.

Borrowers who receive this loan for employee salaries, payroll support, mortgage payments, and other debt obligations may not also receive an SBA economic injury disaster loan (EIDL) for the same purpose.

Direct Payments

Americans making up to $75,000/year would receive checks for $1,200. Couples making up to $150,000/year would receive $2,400, with an additional $500 per child.  The payments would decrease for those making more than $75,000/year, with an income cap of $99,000/year per individual or $198,000/year for couples.

Expanded Unemployment Benefits

The legislation would significantly boost unemployment insurance benefits, expanding eligibility and offering workers an additional $600 a week for four months, on top of what state unemployment programs pay.  Benefits would also be extended to workers who typically do not qualify, such as furloughed employees and freelancers.

Emergency Paid Sick Leave and Emergency Family/Medical Leave  

Legislation signed into law last week provides additional assistance for eligible workers in the form of emergency paid sick leave and family leave starting April 2, 2020.  That law, the Families First Coronavirus Response Act, allows employers to claim a tax credit against payroll taxes to reimburse them for 100% of the qualified payments made pursuant to the Act, up to the specified per diem and aggregate payment caps.  See SMT’s March 19, 2020 Employment Law Bulletin for more information regarding the Families First Coronavirus Response Act, including employer obligations, eligible employees and the tax credit.

Terry Sterling

All SMT attorneys are working and available to assist you with your legal needs.  Please don’t hesitate to email or call the office at 707-524-1900.

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | March 19, 2020 (COVID-19)

FAMILIES FIRST CORONAVIRUS RESPONSE ACT

Last night, President Trump signed emergency legislation providing protections for employees affected by COVID-19.  The new law requires employers of fewer than 500 employees to provide family and medical leave and paid sick leave to eligible employees for specified COVID-19 related events.  It becomes effective on April 2, 2020 and expires on December 31, 2020.  The new law has posting requirements and provides for employer tax credits.  A model poster will be available by March 25, 2020.

Emergency Family and Medical Leave Expansion Act (EFMLA)

The EFMLA law requires employers of fewer than 500 employees to provide up to 12 workweeks of job-protected leave to employees who have been employed for at least 30 calendar days and are unable to work (or telework) due to the need to care for their child, if the child’s school or paid child care provider has closed because of a public health emergency.  Employers are not required to pay employees for the first 10 days of the leave, but must allow employees to use their accrued vacation, personal leave or sick leave if they choose.  The remaining 10 workweeks of leave must be paid by the employer at two-thirds of the employee’s regular pay (capped at $200 per day and $10,000 in the aggregate, per employee).

Paid leave is calculated as follows:

  • Employees with Fixed Work Schedules: Two-thirds of an employee’s regular rate of pay multiplied by the number of hours the employee would otherwise be normally scheduled to work
  • Employees with Schedules that Vary Week-to-Week: Two-thirds of an employee’s regular rate of pay multiplied by the average number of hours the employee was scheduled per day over the 6-month period ending on the date on which the employee takes leave, including hours for which the employee took leave of any type. (If the employee did not work over such period, the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.)

Employees taking this leave have job restoration rights at the end of the 12-week leave period.  Employees must be restored to the same position or an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.  Exceptions exist for employers of 1-24 employees, if employers can prove all of the following:

  • The employee’s position does not exist due to economic conditions or other changes in the operating conditions of the employer
    • that affect employment; and
    • are caused by a public health emergency during the period of leave.
  • The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment.
  • If the reasonable efforts to restore the employee fail, the employer makes reasonable efforts during the Contact Period to contact the employee if an equivalent position becomes available. (The Contact Period is the 1-year period beginning on the earlier of (a) the date on which the qualifying need related to a public health emergency ends; or (b) the date that is 12 weeks after the date on which the employee’s leave begins.

The EFLMA permits employers of employees who are health care providers or emergency responders to elect to exclude such employees from EFMLA.

Finally, an employer that is part of a multi-employer collective bargaining agreement (MCBA) may fulfill its obligations by making contributions to the multi-employer fund, plan or program based on the paid leave each of its employees is entitled to while working under the MCBA.

Lisa Ann Hilario

Emergency Paid Sick Leave Act (EPSLA)

The EPSLA requires employers of fewer than 500 employees to provide 10 days of emergency paid sick leave to employees who are unable to work (or telework) because the employee:

  • is subject to (or caring for an individual who is subject to) a Federal, State, or local quarantine or isolation order related to COVID-19 (for instance a Shelter In Place Order)
  • has been advised (or is caring for an individual who has been advised) by a health care provider to self-quarantine due to concerns related to COVID-19
  • is experiencing symptoms of COVID-19 and seeking a medical diagnosis
  • is caring for the employee’s child whose school or child care provider has been closed or unavailable due to COVID-19 precautions
  • is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

The amount of sick leave pay varies according to the reason for the leave:

  • EPSL for the employee’s own quarantine, isolation, or symptoms is equal to the employee’s regular rate of pay multiplied by 80 hours (for full-time employees) or the number of hours the employee would work, on average, over a two-week period (for part-time employees**). A maximum of $511/day and $5,110 in the aggregate per employee applies.
  • EPSL to care for another who has been quarantined or isolated, or to care for a child whose school is closed, is equal to two-thirds of the above-amount. A maximum of $200/day and $2,000 in the aggregate per employee applies.

**If the part-time employee’s work schedule varies week-to-week, use the average number of hours the employee was scheduled per day over the 6-month period ending on the date on which the employee takes EPSL, including hours for which the employee took leave of any type.  (If the employee did not work over such period, the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.)

Employers must allow employees to use EPSL for a qualifying reason first, before the employee uses other paid sick leave, personal leave and vacation offered by the employer.  EPSL does not carry over from one year to the next and does not need to be paid out on termination of employment.

Finally, an employer that is part of a multi-employer collective bargaining agreement (MCBA) may fulfill its obligations by making contributions to the multi-employer fund, plan or program based on the paid sick time each of its employees is entitled to while working under the MCBA.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | March 18, 2020 (COVID-19)

Sonoma County Issues Three Week Shelter In Place Order To Contain COVID-19

On March 17, 2020, Sonoma County issued its own public health order requiring people to shelter at home except for “essential activities” from midnight on March 17, 2020 through April 7, 2020.  You can find the order and answers to frequently asked questions at https://socoemergency.org.

Similar to the recent orders of other Bay Area counties, the Sonoma County order limits activity, travel and business functions to only the most “essential activities including those activities:

  • essential to health and safety
  • to obtain necessary services or supplies
  • to engage in outdoor activities (provided social distancing requirements are followed)
  • to perform work providing essential products and services at an “Essential Business”
  • to care for a family member or pet in another household.

Examples of Essential Businesses that will remain open under the current Order include:

  • Hospitals/clinics and healthcare operations, which includes, pharmaceutical and biotechnology companies, other healthcare facilities, healthcare suppliers, home healthcare services providers, mental health providers, or any related and/or ancillary healthcare services. “Healthcare Operations” also includes veterinary care and all healthcare services provided to animals and licensed cannabis businesses (only for the purpose of providing medical cannabis via curbside pickup or delivery)
  • City/County government services: Police stations, fire stations, jails, courts, garbage/sanitation, public transportation, utilities, and certain city offices
  • Gas stations
  • Pharmacies
  • Food: Grocery stores, farmers markets, food banks, convenience stores, take-out and delivery restaurants
  • Agriculture, food, and beverage cultivation, processing, and distribution, including but not limited to, farming, ranching, fishing, dairies, creameries, wineries and breweries in order to preserve inventory and production (not for retail business)
  • Businesses that are necessary to supply agriculture, food, and beverage cultivation, processing, and distribution
  • Hardware stores/plumbers
  • Banks
  • Community benefit organizations on a case-by-case basis
  • Laundromats/laundry services

See the Order for a more complete list.

We understand these are uncertain times and that you may have questions.  SMT employment attorneys are available to help you.  We are currently working remotely, so the best way to reach us is by email.  You may also call our office at (707) 524-1900 and the receptionist will connect us.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | March 17, 2020 (COVID-19)

COVID-19 and the Workplace – SMT Employment Law Attorneys Are Available to Help

In these unprecedented times with new information being published multiple times a day, many of our clients have questions about the effect COVID-19 has on their workplace and their employees including:

  • remote work arrangements, rules and guidelines
  • dealing with employees who come to work ill, have been exposed to the virus, or have traveled outside the country
  • managing paid and unpaid time to preserve exempt status for exempt employees
  • use of employee sick leave and other paid time off benefits
  • continuation of health insurance and collection of employee premium copays during shutdowns
  • reductions in business hours and temporary layoffs
  • interpretation and ramifications of shelter in place orders
  • SMT employment law attorneys will work with you to develop the best options that work for your business. We are in the
  • office or working remotely and are available by phone, email or videoconference. Please call on us if you need help.

Lisa Ann Hilario

 

Bay Area Counties Issue Three Week Shelter In Place Orders

On March 16, 2020, seven Bay Area counties and one city issued public health orders requiring people to shelter at home except for “essential activities” from March 17, 2020 through April 7, 2020 to contain the spread of COVID-19. Sonoma, Napa and Lake counties have not yet issued shelter in place orders, but we encourage you to prepare for that event.

The seven Bay Area counties and one city are listed below with web site addresses where you can find the orders and in some cases, a list of frequently asked questions and responses:

The Orders limit activity, travel and business functions to only the most “essential activities.”

Examples of “essential activities” for which individuals may leave their home include activities:

  • essential to health and safety
  • to obtain necessary services or supplies
  • to engage in outdoor activities (provided social distancing requirements are followed)
  • to perform work providing essential products and services at an “Essential Business”
  • to care for a family member or pet in another household.
  • Residents must work from home, and may only leave their residence to provide services or perform work necessary to the
  • operations and maintenance of “Essential Infrastructure.”

Examples of Essential Businesses that will remain open under the current orders include:

  • City/County government services: Police stations, fire stations, hospitals/clinics and healthcare operations, jails, courts, garbage/sanitation, public transportation, utilities, and certain city offices.
  • Gas stations
  • Pharmacies
  • Food: Grocery stores, farmers markets, food banks, convenience stores, take-out and delivery restaurants
  • Hardware stores/plumbers
  • Banks
  • Community benefit organizations on a case-by-case basis
  • Laundromats/laundry services

Contact an SMT employment attorney if you have questions or need guidance.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown