Coronavirus in the Workplace
For the most updated information and best practices for your specific business, or for assistance navigating the fluctuating compliance landscape, please contact your Alcott HR team.
Embracing the Workplace Changes of COVID-19 webinar:
Buffalo Niagara Manufacturing Alliance (Recorded 4/22/2020)
Paid Leave Webisode:
Buffalo Niagara Partnership (Recorded 3/25/20)
April 24, 2020
New York State will provide childcare scholarships to essential workers.
The Federal Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), has provided New York State with $163.6 million in emergency relief for the childcare system.
New York is using a portion of this funding to provide childcare for essential workers, at no cost to the worker. This program will support essential workers who are required to work outside of the home (including health care providers, law enforcement, food delivery workers, grocery store employees and others) with scholarships to pay for their existing care arrangement.
- Essential workers using a licensed or registered childcare provider will receive a scholarship for the cost of care through May 1st, 2020.
- All licensed and regulated providers who are caring for the children of essential workers can participate in this new program.
The CARES Child Care Scholarship will be available as long as the funds to support it are available.
- Child care costs will be covered for essential staff whose income is less than 300% of the federal poverty level
Family Size: 2 – Maximum Household Salary Eligibility: $51,720
Family Size: 3 – Maximum Household Salary Eligibility: $65,160
Family Size: 4 – Maximum Household Salary Eligibility: $78,600
Family Size: 5 – Maximum Household Salary Eligibility: $92,040
Family Size: 6 – Maximum Household Salary Eligibility: $105,480
If an essential worker needs childcare, they can contact their local childcare referral agency to find openings. Complete an application or access more information
April 14, 2020
Governor Andrew Cuomo issued an executive order requiring “all essential businesses or entities” to provide “any employees who are present in the workplace” with face coverings to wear “when in direct contact with customers or members of the public,” and specifying that businesses “must provide” such face coverings “at their expense.” This order becomes effective Wednesday, April 15 at 8 p.m. EST
A face covering is a cloth, bandana, or other type of material that covers an employee’s mouth and nose. The CDC lists five criteria for “cloth face coverings,” which should:
1. Fit snugly but comfortably against the side of the face
2. Be secured with ties or ear loops
3. Include multiple layers of fabric
4. Allow for breathing without restriction
5. Be able to be laundered and machine-dried without damage or change to shape
A face covering is not necessarily meant to protect the wearer from others but to prevent a possibly asymptomatic person from unknowingly transmitting the virus to others. Face coverings are just one protective measure, and not a substitute for social distancing, personal hygiene, and additional cleaning protocols.
- Employers should provide employees with instructions and/or training on how to wear, maintain and clean their face coverings. Employees need to know that they must securely cover their noses and mouths, should not reverse, move or remove their masks unnecessarily in the workplace, should not share their masks with others, and must keep them clean.
- Single-use face coverings must be properly and safely discarded into trash receptacles after each use. Employers that opt to provide employees with single-use coverings must provide a sufficient supply to enable employees to replace them as needed, which may be more than once a day.
Governor Cuomo’s Order specifically requires employers to provide employees in essential, customer-facing roles with face coverings at the employer’s expense. Under New York State’s Minimum Wage Orders, most employers have the option to either launder uniforms or to pay the employee a set premium to cover cleaning expenses. Responsibility for cleaning expenses could vary based on state uniform maintenance rules.
As the CDC states, multiple-use face coverings should “be able to be laundered and machine dried without damage or change to shape,” generally at least once a day or more often if contamination occurs.
Employers are strongly advised to either provide employees with a cleaning subsidy or set up an in-house cleaning program at the employer’s expense. Whatever approach employers take, they must ensure that their program complies with all locally applicable wage and hour requirements.
Employers should review wage and hour and OSHA regulations to determine if they are obligated to pay for face coverings and other items recommended for COVID-19 protection.
Sourcing face coverings may be difficult given ongoing shortages of protective equipment. Where states and localities are mandating face coverings, employers should be making and documenting good-faith efforts to secure face coverings as a required element of doing business. Face covering requirements are expanding and are likely to remain in place for the next several months.
The CDC’s website includes do-it-yourself (DIY) options for making one’s own face covering using materials such as T-shirts, bandanas, and hair ties, and numerous similar tutorials can be found online. Employers should consider providing employees with such instructions and materials (at the employer’s expense) as an interim measure while they continue to source more standard face coverings. In such cases, the employee’s time spent making masks is likely to be compensable and the employer should factor that expense into its planning.
- Employees who are using their own face coverings must make sure that these coverings meet the CDC’s recommendations and that they clean them correctly.
- Employees should be cautioned that DIY face coverings must be workplace-appropriate and cannot feature offensive images or content.
Fines and penalties may be imposed for violation of the Public Health Law.
States and localities requiring or recommending the use of masks or other face coverings in the workplace and elsewhere in public currently include New York, New Jersey, the District of Columbia, Los Angeles City and County, Miami-Dade County. It is expected that more states and localities will be added as guidance from the Centers for Disease Control and Prevention (CDC) continues to evolve.
April 2, 2020
The CARES Act, and special guidance concerning the Paycheck Protection Program
On March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security (CARES) Act to provide aid to small to mid-sized businesses and modify various benefit and tax provisions to mitigate the effects of COVID-19 on businesses and expand unemployment benefits for workers impacted by the outbreak, while extending unemployment eligibility to many who are otherwise not regularly entitled to receive such benefits.
The Paycheck Protection Program, which is the centerpiece and most significant provision of the Cares Act, would allow most employers of 500 or less employees, to fund payroll costs and other expenses, with up to 100% loan forgiveness.
Limited Funding and Limited Time
- With 30.2 million small employers (less than 500 employees) in the US as of March 2020, and $349B earmarked funding through the CARES Act for the PPP loan, just under $11K in funds would be available if every eligible small employer were to apply and be approved. This excludes millions of contractors and self-employed proprietors who are also eligible for the loan.
- With the application released just over 2 days ahead of the date applications can be accepted by lenders, funds may be completely depleted within just 1 week, leaving potentially thousands of eligible businesses behind with funds no longer available. We advise all to act fast and act now.
- The PPP Loan has the potential to offer more available funds
- The PPP Loan offers more immediate cash flow, while the major tax credits are not available as a credit back to you until 2021
- The PPP Loan appears to offer less administrative burden for tracking and reporting
- It is anticipated that millions of businesses will be applying for the PPP loan. It is highly recommended you begin the process to claim your “spot in line” while funds are still available
Additional Loans To Mid-Size Businesses
While not eligible for paycheck protection loans, mid-size businesses – those with 500 to 10,000 employees – are also eligible for direct loans under the Emergency Relief and Taxpayer protections portion of the CARES Act. For a business to receive this type of loan under the Act, it must make a “good-faith certification” that it will comply with certain requirements listed in the CARES Act. This certification will likely occur on a form provided as part of the application for the loan and the failure to comply with the certifications could result in the rescission of the loan.
There are several certifications that any business applying for a loan should be aware of and discuss with counsel before accepting such a loan.
Payroll Tax “Holiday” (not available if employer receives “Paycheck Protection” Loan)
In order to assist employers with immediate cash-flow issues, the CARES Act also provides that employers may defer payment of their portion of Social Security taxes they would otherwise be obligated to pay. Any deferred payroll taxes would be required to be paid over the next two years – with half of the owed amount being required to be paid by December 31, 2021, and the remaining half by December 31, 2022. This payroll tax “holiday” may provide additional assistance to employers during this period of crisis.
April 1, 2020
The Families First Coronavirus Response Act (FFCRA) Posting has just been released in response to the COVID-19 emergency. All private employers with fewer than 500 employees must display the new federal workplace posting effective April 1, 2020 on a temporary basis through December 31, 2020.
The U.S. Department of Labor has indicated that employers may satisfy the posting requirement by emailing or direct mailing the posting to employees or posting the notice on an employee information website. Please inform your employees of the availability of all posters on Alcott HR Connect
March 26, 2020
The Senate has reached an agreement on a bill intended to provide direct economic relief in response to the COVID-19 pandemic. As a result of the virus, the Senate passed the “Coronavirus Aid, Relief, and Economic Security Act” or the “CARES Act.”
This bill is in addition to H.R. 6201, Families First Coronavirus Response Act, which the President signed into law on Wednesday, March 18, 2020 and any local or state laws.
March 24, 2020
In response to the President’s address to the nation calling for economic assistance to small businesses, the Small Business Administration (“SBA”) has committed to working in conjunction with state Governors to provide targeted, low-interest disaster recovery loans to small businesses that have been severely impacted by the current COVID-19 pandemic in designated states. Upon a request received from a state’s or territory’s Governor, the SBA will issue under its own authority, as provided by the “Coronavirus Preparedness and Response Supplemental Appropriations Act” that was recently signed by the President, an Economic Injury Disaster Loan declaration. With loans offered up to $2 million in assistance to a single small business, the economic support offered is intended to help overcome the temporary loss of revenue being experienced.
Applicable Use Examples
- Paying fixed debts
- Accounts payables, and other bills that cannot be paid due to the disaster’s impact
- The interest rate would be 3.75% for small businesses without credit available elsewhere
- The interest rate for non-profits is 2.75%
- Businesses with credit available elsewhere are not eligible.
The payment terms will be determined on a case-by-case basis, based upon each borrower’s ability to repay, and are designed to be affordable, with terms extending up to a maximum of 30 years.
How To Apply
By Phone: SBA Disaster Assistance, 1-800-659-2955 (TTY: 1-800-877-8339)
By E-mail: email@example.com
The Internal Revenue Service (“IRS”) has recently announced a three-month delay for any tax payments that corporations owe up to $10 million.
Business tax credit: On March 18, the President signed into law a business tax credit that provides tax relief for up to 100% of the benefits that employers give to their employees due to COVID-19.
NYC Small Business Services: offering businesses with fewer than 100 employees, who have seen sales decrease by 25% or more, zero-interest loans of up to $75,000. It is also offering businesses with fewer than five employees a grant to cover 40% of payroll costs for two months.
March 20, 2020
Federal Families First Coronavirus Response Act
President Trump signed the Families First Coronavirus Response Act, expanding paid leave to Americans impacted by the coronavirus pandemic. The Family and Medical Leave Expansion Act (FMLEA) takes effect April 2, 2020 and expires on December 31, 2020. The act has two provisions providing paid leave to employees forced to miss work as a result of the COVID-19 pandemic: an expansion of the Family and Medical Leave Act and a new federal paid sick leave law. These provisions do not diminish or undermine any rights or benefits conferred upon employees on any preexisting employer policies, collective bargaining agreements, or state or local laws, to the extent applicable.
Private sector employers with fewer than 500 employees are subject to the two provisions listed below. Employers can exclude employees who are health care providers or emergency responders. The U.S. Secretary of Labor is granted authority to exempt small businesses under 50 employees if the requirements jeopardize the viability of the business. As the law was just enacted, we anticipate the U.S. Department of Labor may provide further guidance on these issues soon.
Emergency Paid Sick Leave Act (EPSLA)
Full-time employees are eligible for 80 hours of paid leave at the employee’s regular rate (capped at $511 per day) for the following COVID-19 related reasons:
- Employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19
- Employee has been advised by a health care provider to self-quarantine because of COVID-19
- Employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis
Full-time employees are eligible for 80 hours of paid leave at two-thirds (2/3) of their regular rate (capped at $200 per day) for the following COVID-19 related reasons:
- Employee is caring for an individual subject or advised to quarantine or self-isolate;
- Employee is caring for a son or daughter whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 precautions; or
- Employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Part-time employees are entitled to the number of hours they work, on average, over a two-week period.
Unlike the emergency FMLA requirements, an employee is immediately eligible for this leave (there is no 30-day-on-payroll requirement).
Penalties for Noncompliance: The bill includes a prohibition on retaliating against any employee who takes leave in accordance with the new law. The bill further provides that the failure to pay required sick leave will be treated as a failure to pay minimum wages in violation of the Fair Labor Standards Act.
Emergency Family and Medical Leave Expansion Act (FMLEA)
Covered employers must provide up to 12 weeks of job protected FMLA leave for “a qualifying need related to a public health emergency” to employees who have been on the payroll for 30 calendar days.
This provision of the law temporarily expands the FMLA to provide paid, job-protected leave for employees who are unable to work or telework because they need to care for a child under the age of 18 whose school has closed, or whose child care provider is unavailable for reasons related to COVID-19.
- The first ten (10) days of this leave may be unpaid. Employees can use accrued vacation, personal, or sick leave during this time, but employers cannot require them to do so.
- The remainder of their leave must be paid at two-thirds (2/3) the employee’s regular rate, for the number of hours the employee would otherwise be scheduled to work (capped at $200 per day and $10,000 total).
- The employer must restore employees to their prior positions (or an equivalent) upon the expiration of their need for leave. There is an exception to this requirement for employers with fewer than 25 employees, if the employee’s position no longer exists following leave due to operational changes occasioned by a public health emergency (e.g., a dramatic downturn in business caused by the COVID-19 pandemic), subject to certain conditions.
Tax Credits and Other Efforts
The statute provides a series of refundable tax credits for employers who are required to provide the emergency paid sick leave and the emergency paid family and medical leave described above. Specifically, employers are entitled to a refundable tax credit equal to 100 percent of qualified sick leave wages and 100 percent of qualified family leave wages, through a formula delineated in the act.
Governor Cuomo announced March 20, 2020 that Executive Order will be effective Sunday evening, March 22, 2020 mandating that 100% of workforce must stay home, excluding essential services. Employers should have employees work from home where and when possible. Civil fines will be issued for businesses not in compliance.
The Executive Order contains a list of essential businesses that are exempt from the mandatory reduction. Exemptions will be made for essential service industries, including shipping, media, warehousing, grocery and food production, pharmacies, healthcare providers, utilities, banks and related financial institutions, and other industries critical to the supply chain. Please see NY Guidance for Essential Business Exemption. The link contains guidance from yesterday, as it has not been updated with this morning’s information. We anticipate that the exemptions will remain the same. Please contact your HR Team with any questions
For more information: New York COVID-19
In the event that a work-from-home program is not possible in your business and you are considering closing down or drastically reducing your workforce because of these mandates, please reach out to us to discuss best practices related to your qualification as an essential services business. As always, we are here to answer any questions you may have and help you through these tumultuous times.
March 11, 2020
The World Health Organization (WHO) made the assessment that COVID-19 can be characterized as a pandemic. All employers need to consider how best to decrease the spread of acute respiratory illness and lower the impact of COVID-19 in their workplace.
Some of the key considerations when making decisions on appropriate responses are:
- Consider canceling non-essential business travel per travel guidance on the CDC website.
- Travel restrictions may be enacted by other countries which may limit the ability of employees to return home if they become sick while on travel status.
- Consider cancelling large work-related meetings or events.
- Prepare for possible increased numbers of employee absences due to illness in employees and their family members, dismissals of early childhood programs and K-12 schools due to high levels of absenteeism or illness:
- Employers should plan to monitor and respond to absenteeism at the workplace. Implement plans to continue your essential business functions in case you experience higher than usual absenteeism.
- Cross-train personnel to perform essential functions so that the workplace is able to operate even if key staff members are absent.
- Assess your essential functions and the reliance that others and the community have on your services or products. Be prepared to change your business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations if needed).
Recommendations for an Infectious Disease Outbreak Response Plan:
- Identify possible work-related exposure and health risks to your employees.
- Plan to minimize exposure between employees and also between employees and the public, if public health officials call for social distancing.
- Explore whether you can establish policies and practices, such as flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), to increase the physical distance among employees and between employees and others if state and local health authorities recommend the use of social distancing strategies.
- Ensure that you have the information technology and infrastructure needed to support multiple employees who may be able to work from home. If allowing remote work, considering any IT needs to support a remote workforce while maintaining data security, especially for Health Insurance Portability and Accountability Act (“HIPAA”)-covered entities.
- If an employee will not be allowed in the office or to telework, communicate whether he or she will be paid or, rather, whether he or she can use sick, vacation, or any other type of paid leave.
- Promptly address any leave or accommodation requests from employees and remind employees of leave and call-out policies.
- Assure that your policies and practices meet pertinent OSHA (and CDC) standards, especially for health care employees when blood-borne pathogens may be present.
Additionally, the CDC recommends:
- Individuals and communities should familiarize themselves with recommendations to protect themselves and their communities from getting and spreading respiratory illnesses like COVID-19.
- Older people and people with severe chronic conditions should take special precautions because they are at higher risk of developing serious COVID-19 illness.
- If you are a close contact of someone with COVID-19 and develop symptoms of COVID-19, call your healthcare provider and tell them about your symptoms and your exposure. They will decide whether you need to be tested, but keep in mind that there is no treatment for COVID-19 and people who are mildly ill are able to isolate at home.
- If you are a resident in a community where there is ongoing spread of COVID-19 and you develop COVID-19 symptoms, call your healthcare provider and tell them about your symptoms. They will decide whether you need to be tested, but keep in mind that there is no treatment for COVID-19 and people who are mildly ill are able to isolate at home.
- For people who are ill with COVID-19, but are not sick enough to be hospitalized, please follow CDC guidance on how to reduce the risk of spreading your illness to others. People who are mildly ill with COVID-19 are able to isolate at home during their illness.
- If you have been in a warning level 3 area or another affected area or have been exposed to someone sick with COVID-19 in the last 14 days, you will face some limitations on your movement and activity. Please follow instructions during this time. Your cooperation is integral to the ongoing public health response to try to slow spread of this virus.