During this unprecedented time due to the coronavirus COVID-19 outbreak, we want to assure you that we remain available to you and provide you with the legal service you need for yourself, family and business. We have the right technology in place to continue working and serving our clients, including remote access and video conferencing capabilities, as well as telephone and email. With court closures, we are in regular communication with local, state and federal courts concerning postponements, audio and video hearings, and scheduling challenges.
The health and safety of our clients, staff and attorneys, as well as our entire community, are of paramount concern. We are monitoring all official sources to ensure we are compliant with the latest recommendations for infection control and overall mitigation efforts against the spread of COVID-19. We encourage phone or video conferences in lieu of personal meetings whenever possible, and will we reach out to clients with scheduled appointments to make that shift.
A directory of each attorney’s email address, cellphone number and direct lines are listed for your reference.
As the situation evolves, we will provide additional updates. We remain committed to protecting your interests and being available and accessible.
Thank you for your understanding. We hope that you, your family and our community remains healthy and safe.
State and Federal Laws and Policies During COVID-19 Virus Crisis
In response to the COVID-19 virus, the state and federal government have implemented emergency legislation and regulations that impact a number of workplace issues. The situation is evolving daily, and both employers and employees should consider speaking with an employment attorney regarding specific situations that may arise. Many of the enacted provisions are temporary and are specifically tailored to address the challenges employers and employees are currently facing. The following is a summary of the most significant changes.
- LAID-OFF OR FURLOUGHED EMPLOYEES
As the economy falls into crisis, many employers are struggling with meeting payroll and face decisions regarding laying off or furloughing employees. We consider a furlough to be a temporary suspension of an employee from working (in whole or in part), with the intention of returning the employee to full duty when circumstances allow. We consider a layoff to be a termination of an employee’s employment with no promise that the employee will be returned to work. As with any decision, objective criteria should guide decisions regarding furloughs and layoffs, and care should be taken to ensure that decisions are not being made in a discriminatory manner. Whether a separation from employment is considered a layoff or a furlough may impact the following issues.
a. Payment of accrued, unused vacation time
Pursuant to the Massachusetts Wage Act, employees must be paid for all accrued, unused vacation time on the day they are being laid off. This is true for layoffs, and even if the employee is furloughed and the employee plans to reemploy the employee after a period of time. The Office of the Massachusetts Attorney General has stated in an informal guidance that it will not pursue enforcement of the Wage Act against employers where a furloughed employee voluntarily chooses to forego being paid out for vacation time in order to save the vacation time for when he/she returns to work. This position by the Attorney General, however, does not prevent an employee from bringing a private right of action to enforce the Wage Act in such a circumstance.
Both the state and federal government has taken actions to increase unemployment assistance to employees impacted by the COVID-19 virus. Employees laid off due to COVID-19 will generally be eligible for unemployment, and the one week waiting period which normally precedes receipt of unemployment benefits has been waived for employees laid off due to COVID-19.
Federal legislation currently pending final passage increases the amount of unemployment that individuals will collect, and also expands eligibility for benefits. Pursuant to this legislation, all individuals eligible for unemployment benefits will receive an additional $600 per week above what they normally would earn, regardless of pre-unemployment income, for up to four months. The legislation also expands eligibility for unemployment benefits to independent contractors and self-employed individuals who otherwise would have been ineligible for benefits.
Pursuant to Massachusetts policies, furloughed employees are eligible for unemployment if they are temporarily, partially or fully unemployed provided that the following requirements are met:
- Employees must remain in contact with their employers during the shutdown.
- Employees must be available for any work their employer may have for them that they are able to do.
- An employer may request to extend the period of the covered shutdown to 8 weeks, and employees will remain eligible for the longer period under the same conditions described above.
- If necessary, the Massachusetts Department of Unemployment Assistance may extend these time periods for employees and employers.
The Massachusetts Department of Unemployment Assistance (“DUA”) has also made the following changes:
- All requirements regarding attending seminars at the MassHire career centers have been suspended.
- Deadlines missed by employers and claimants due to effects of COVID-19 may be excused under DUA’s good cause provision.
- Employers whose businesses are severely impacted by COVID-19 can request extensions for filing and paying unemployment contributions.
- “Worksearch” requirements will be interpreted to appropriately permit claimants affected by COVID-19 to collect benefits.
- All appeal hearings will be held by telephone only.
Finally, the DUA has stated that it may pay unemployment benefits if an employee is quarantined due to an order by a civil authority or medical professional, or leaves employment due to reasonable risk of exposure or infection or to care for a family member. This, however, may be superseded by an employer’s obligations to provide paid sick time as set forth below.
c. Payment of Wages to Partially Furloughed Employees
Some employers may furlough their employees, but still ask them to perform reduced duties. With the exception of paid leave, employees paid on an hourly basis need only be paid for hours actually worked. Salaried employees who are exempt from overtime requirements under the Fair Labor Standards Act must be paid their full salary for a week in which employees perform any work. If an exempt employee performs no work in a week, he/she need not be paid for that week.
d. Continuation of Health Insurance
When making decisions regarding continuation of health insurance, employers should always consult their group plan. Laid off employees likely must be terminated from the employer’s health insurance plan, but may be able to extend coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”). Furloughed employees may, or may not, be maintained on the employer’s health insurance depending on the individual plan. When an employee elects to continue health insurance under COBRA, the employer may pay all or a portion of the employee’s premium.
- EMPLOYEE LEAVE
In response to the crisis, the federal government passed the Families First Coronavirus Response Act (“FFCRA” or “Act”), which requires certain employers to provide employees with sick time and family and medical leave for specified reasons related to COVID-19. The Act covers employers with fewer than 500 employees and some public employers. It goes into effect on April 1, 2020, and currently expires on December 31, 2020. The Department of Labor’s (Department) Wage and Hour Division (WHD) administers and enforces the Act’s paid leave requirements, and will issue regulations soon. The leave falls into several categories.
a. Emergency Sick Leave for Quarantined Employees and/or Employees Experiencing COVID-19 Symptoms
Under the Act, all employees are entitled to two weeks (up to a maximum of 80 hours) of emergency sick leave who:
- are subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- have been advised by a health care provider to self-quarantine related to COVID-19;
- are experiencing COVID-19 symptoms and is seeking a medical diagnosis;
Employees taking leave for one of these reasons are entitled to be paid at their regular rate of pay up to a maximum of $511 per day and $5,110 in the aggregate.
All employees are also entitled to two weeks (up to a maximum of 80 hours) of leave who are experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury. Employees taking leave for this reason shall be paid at 2/3 their regular rate of pay or 2/3 the applicable minimum wage, whichever is higher, up to a maximum of $200 per day and $2,000 in the aggregate.
This emergency sick leave is in addition to any state mandated paid sick leave and any additional paid sick leave pursuant to an employer’s existing sick leave policies.
b. Emergency sick leave for employees caring for a quarantined individual
All employees are entitled to up to two weeks (up to a maximum of 80 hours) of sick leave to care for an individual quarantined subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or who have been advised by a health care provider to self-quarantine related to COVID-19. Employees taking leave for this reason shall be paid at 2/3 their regular rate of pay or 2/3 the applicable minimum wage, whichever is higher, up to a maximum of $200 per day and $2,000 in the aggregate.
c. Sick leave and family medical leave for employees caring for a child without school or daycare
Employees are entitled to 12 weeks (up to a maximum of 40 hours per week) of leave to care for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19. Employees who have been employed for less than 30 days are only eligible for two weeks of leave for this reason. Employees taking leave for this reason shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in aggregate (over a 12-week period—two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave). Employers with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.
The Department of Labor has created a poster notifying employees of their rights under the FFCRA, which employers must post in a conspicuous place on its premises. Employers may satisfy this requirement by emailing or direct mailing this notice to employees, or positing the notice on an employee accessible internal or external website. Employers should post in a manner which is most logical under its current work arrangements.
Employees have obligations regarding providing notice of leave to employers. Where the need for leave is foreseeable, employees are required to provide reasonable notice. After the first day of leave, employers may put in place reasonable notice procedures in order for the employee to continue receiving leave.
- TAX REBATES
The U.S. Treasury, IRS, and Department of Labor have announced that certain employers can receive a payroll tax credit for wages paid to employees on leave under the FFCA. Tax credits are equal to the amount paid to employees for leave required under the FFCA. Eligible employers are entitled to an additional tax credit determined based on costs to maintain health insurance coverage for the eligible employee during the leave period.
For more information regarding the above memo, please contact one of the following: