Ask The Lawyer, Employment During Covid-19 Pandemic

GWINN LEGAL PLLC 
Attorneys and Counselors at Law
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
www.gwinnlegal.com
Daniel Cell: (313) 549-1075
April 2020

Dear Friends and Clients:

COVID-19 has impacted us all: self-isolation, fears of infection, lost jobs, lost business, home schooling and a slew of executive orders, laws and regulations.

Gwinn Legal has compiled a concise, at-your-fingertips summary of several of the laws and orders that may impact you, your family, or your business.

While working remotely, we remain committed to our clients to help you in any way we can. Contact us if we can be of service.

LEAVE AND SICK TIME:

Families First Corona Response Act requires paid sick time under the Emergency Paid Sick Leave Act (EPSLA) and 12 weeks leave — 10 of it paid — under the Emergency Family and Medical Leave Expansion Act (EFMLEA). The Act applies to employers with 500 or fewer employees.

EPSLA provides up to 80 hours paid sick time if employee:

  • is subject to federal, state or local quarantine or isolation order related to COVID-19, or
  • has been advised by health care provider to self-quarantine because of COVID-19; or
  • is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  • is caring for someone to whom (1) or (2) applies;
  • is caring for a child whose school, daycare, or child care has been closed or is unavailable due to COVID-19;
  • is experiencing “any other substantially similar condition.”

Note: The amount of pay employees receive depends on the reason: For (1),(2) or (3), it’s the higher of their regular rate or the minimum wage, up to $511 per day or a total of $5,110; for reasons (4) and (6) pay is the higher of 2/3 regular rate or 2/3 minimum wage, up to $200 per day and a total of $2,000; reason (5) gets the same rate as (4) and (6), but can receive up to $12,000 (includes 10 weeks under EFMLEA).

FMLA just got supersized!

EFMLEA requires employers to provide a total of 12 weeks leave — first two weeks unpaid — then 10 weeks paid at 2/3 of worker’s usual rate. The Emergency version fast-tracks worker eligibility to after only 30 days on the job (FMLA requires a year) and expands covered pool of employers to those with 500 or fewer workers (FMLA exempts businesses with fewer than 50 employees).

The kicker? Worker is only eligible for the expanded leave for reason #5 above. If employee has contracted COVID-19, the usual requirements (and lack of pay) for FMLA apply.

Good News for Small Businesses:

Tax Credits: Small and Mid-size businesses may qualify for a tax credit to cover the cost of paying for leave and sick time under the EFMLEA.

Exemptions: Under DOL guidelines, small businesses with fewer than 50 employees may be exempt from offering the paid sick time and leave to an employee to care for a child (reason 5 above) when:

  • doing so would cause expenses to exceed revenue and “cause the small employer to cease operating at a minimal capacity”;
  • the absence of the leave-taking employee has such “specialized skills, knowledge of the business, or responsibilities” that his or her absence would “pose a substantial risk” to the small employer’s financial health or “operating capacity”; and
  • when the small employer can’t find enough qualified workers to take over for the worker taking leave and the business cannot “operate at minimal capacity.”

HIGHLIGHTS:

Employers cannot require workers to use accrued PTO or paid time under the EPSLA for the first two weeks — but no harm in asking! Workers can choose to use accrued leave in order to be paid, and can use the EPSLA if it applies.

An employee who already took time off under the FMLA does not get the full 12 weeks under the EFMLEA.

Employees who can do some work from home, could have intermittent leave under the EFMLEA. Section 826.50(c) specifically addresses intermittent leave for teleworking employees, but like rules under the regular FMLA — the employer MUST agree to the intermittent leave!

An employer may deny EFMLEA leave to a worker who has someone to care for his or her child. The DOL states “an employee does not need to take such leave if another suitable individual — such as a co-parent, co-guardian, or the usual child care provider — is available to provide the care the employee’s child needs.”

UNEMPLOYMENT:

The federal CARES Act and an Executive Order by Gov. Whitmer may give laid-off or furloughed workers better unemployment benefits than ever before, and make benefits available for the first time to self-employed workers.

Under Executive Order 2020-24, unemployment is now available to workers who

  • leave work “because of self-isolation or self-quarantine”;
  • are “immunocompromised”;
  • have been exposed to a person diagnosed with COVID-19 in the last 14 days;
  • show symptoms of COVID-19;
  • have to take care of someone diagnosed with COVID-19;
  • or who have a family care responsibility as a result of a government directive.

 

Workers who are laid off, whether or not the reason is related to the virus, also benefit:

  • Workers who had an active claim on the effective date of the order get 26 weeks of benefits (up from 20), as do those who file a claim on or after that date. And, the effective date is retroactive to March 16, 2020.
  • Workers now get 28 days after layoff to file a claim.
  • All claimants are excused from the requirement that they remain able, available and looking for work in order to receive benefits.

The Order also contains some good news for employers: Benefits will not be charged to an employer’s account!  And, the Order suspends “strict compliance” with the requirements for Shared Work, which allow some employers to keep workers on staff, while reducing their hours.

The CARES Act:

The federal government established three programs to help keep unemployed workers above water:

Federal Pandemic Unemployment Compensation Program (FPUC) — Eligible unemployed workers get an extra $600 per week in benefits through July 2020. (Coupled with the maximum $362 from Michigan, workers could receive as much as $962 per week.

Pandemic Emergency Unemployment Compensation (PEUC) — Unemployment eligibility is extended by up to 13 weeks — Michigan’s unemployed workers could receive benefits for 39 weeks.

Pandemic Unemployment Assistance (PUA) — Self-employed workers, independent contractors and gig workers become eligible for state and federal benefits (but only if they are forced to completely shut down their business).

HIGHLIGHTS:

  • A worker whose benefits expired may receive the 13-week extension.
  • The expanded coverage is available to workers who became eligible for unemployment benefits beginning on January 27, 2020 — even if the reason was not related to COVID-19 — and it continues to apply through December 31, 2020. The $600 per month is NOT retroactive.
  • The reason for a worker’s unemployment does not have to be related to COVID-19 — except for gig workers, independent contractors, self-employed workers and others who would not otherwise be eligible for unemployment benefits. They must be able to show that they are unemployed, partially unemployed or “unable or unavailable” to work because of a COVID-19 reason.

BUT — workers who can telework for pay are not eligible, and neither are workers who quit work or “stopped working without good cause to obtain unemployment benefits.”

KEEPING YOUR FINANCIAL HOUSE IN ORDER:

Mortality statistics related to the pandemic may have many thinking about the future. And how to take care of it.

Wills. Powers of Attorney. Medical treatment options.

Trouble is, writing a will, setting up a power of attorney for health care (or a durable power of attorney) requires witnesses and notarization. Not easy to do with social distancing.

Executive Order 2020-41 helps solve the problem by allowing use of electronic signatures, remote notarization and witnesses through May 6 (look for this to be extended).

Technology used must allow “direct interaction by sight and sound”, the notarization and/or witnessing must be recorded, the record must be maintained for 10 years; and evidence of identity must be presented during the videoconference.

Gwinn Legal is updating its use of the Zoom platform. If you are interested in updating (or creating) a will or other document, please get in touch.

We hope you found this information useful. If you’d like to check out the various links (underlined here) to some of the many documents we reviewed, please click on the online version of this letter on our website at www.gwinnlegal.com. And review our “Ask the Lawyer” posts for additional helpful information.[1]

We value our relationship with you. Keep safe, stay well.

Very truly yours,

Daniel A. Gwinn
daniel@gwinnlegal.com

Laura Bradshaw-Tucker
laura@gwinnlegal.com

[1] This letter is for informational purposes only and is not a substitute for legal advice, nor does it establish an attorney-client relationship. Call us for professional recommendations regarding your specific situation. Laws and regulations are subject to change.

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