This is the second in a series of articles coordinated by RBE’s attorneys to assist our business clients in this unusual time. Legal developments are extremely fluid as Congress, attorneys, and business clients all grapple with the various issues being presented. This article discusses updates on the Families First Coronavirus Response Act, unemployment compensation, and the Worker Adjustment and Retraining Notice Act (“WARN”) that potentially need to be considered by our clients.

More Guidance for Employers about Paid Sick Leave

The U.S. Department of Labor (“DOL”) is continuing to finalize its regulations addressing the new Families First Coronavirus Response Act (“FFCRA”), but in the meantime, it has issued guidance in a number of areas associated with FFCRA. For example, as we await the final regulations, the DOL has now released a poster required to be posted in the employer’s facility under FFCRA, a “fact sheet,” and “questions and answers” that give employers and employees additional guidance.

These new DOL documents (including the poster that should be posted and emailed to employees) may be found here, www.dol.gov/agencies/whd/pandemic.

Some highlights from the DOL documents are that the Act becomes effective April 1, 2020 and applies to leave taken between April 1 and December 31, 2020. None of the provisions are “retroactive” to leaves beginning before April 1. Further guidance will be provided by the DOL in the upcoming regulations for businesses with fewer than 50 employees that want to apply for an exemption on the basis that compliance “would jeopardize the viability of the business as a going concern.”

The DOL also includes information on what paid sick leave an employee is entitled to receive under FFCRA if the employee is absent because of being quarantined or experiencing symptoms. Such an employee would be entitled to his regular rate of pay up to $511 per day for 10 days. If an employee is caring for an individual who is required to be quarantined or is responsible for childcare because it is unavailable due to the virus, that employee would be entitled to 2/3 of his or her pay up to $200 per day for 10 days. After those 10 days, if a qualifying employee is taking expanded family leave to care for his or her child whose school or place of care is closed (or childcare provider is unavailable) due to COVID-19 related reasons, the employee may receive up to 2/3 of his or her regular pay for the remainder of the 10 weeks (maximum $200 per day) for a total of 12 weeks of sick leave.

Unemployment Compensation

Our former law partner who is now General Counsel for the Indiana Department of Workforce Development (“DWD”), Beth Green, has asked us to pass along this message concerning unemployment compensation claims:

We are looking to message as broadly as possible to impacted Indiana businesses and employees as the volume of claims for unemployment insurance benefits continue to increase tremendously as a result of COVID-19.

Below are links to two recent DWD releases regarding (1) filing for unemployment insurance benefits and (2) large layoffs due to COVID-19 (how employers can assist DWD in processing claims more quickly for impacted staff).

1. https://content.govdelivery.com/accounts/INDWD/bulletins/282b567
2. https://www.in.gov/dwd/4011.htm

To the extent your firms can provide these resources through existing avenues for COVID-19 messaging to Indiana business clients and others, we’d be appreciative.

If you decide to lay off employees, we recommend that you provide them with the first website above. Claims for unemployment compensation are to be filed electronically (in an effort to limit the spread of the virus).

The Governor’s Executive Order 20-12 was signed on March 26, 2020, which addresses suspension of the one-week waiting period for unemployment compensation benefits. https://www.in.gov/gov/files/Executive_Order_20-12_Further_Directives_Helping_Hoosiers.pdf

In addition, DWD has now posted updated COVID-19 FAQs, both for claimants and employers, available at unemployment.in.gov.

WARN Act

We also want employers to be reminded of additional notification requirements that exist in the event of a mass layoff or plant closure. For example, employers with 100 or more employees should be aware of requirements of the Worker Adjustment and Retraining Notification Act (“WARN”), which requires the employer to provide at least 60 days’ notice to an affected employee, as well as state and local government heads, of a “mass layoff” or “plant closing.” Even though not required under WARN, employers are also being asked to provide the Indiana DWD with employee-specific information about layoffs, regardless of the size of the employer. For details, go to www.in.gov/dwd/4011.htm.

WARN does provide for some relief from the 60 days’ notice requirement if there are “unforeseen business circumstances,” “natural disaster,” or “faltering business,” in which case the notice must be provided as soon as practicable. WARN does contain substantial penalties for failure to comply with its provisions and each situation should be analyzed carefully, so we suggest you consult with counsel before implementing a layoff if your company has 100 or more employees.

The attorneys at RBE will continue to monitor developments and keep you up to date.

© Riley Bennett Egloff LLP

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Posted on Mar, 26 2020 by Donald S. Smith