On Friday, May 1, Governor Baker issued COVID-19 Executive Order No. 31 requiring face coverings in public places where social distancing is not possible. The Order provides that effective Wednesday, May 6, 2020, any person over 2 years of age, within a public place and who cannot maintain social distancing – defined as maintaining a distance of 6 feet from others – “shall cover their mouth and nose with a mask or cloth face covering[.]” The new mandate “applies to all workers and customers of businesses and other organizations open to the public as ‘essential businesses.’”
The U.S. Department of Labor (DOL) has launched a national online dialogue to obtain feedback on “Opening America’s Workplaces Again.” Businesses and workers are invited to participate in this new public forum and to provide comments through May 7, 2020. Specifically, the DOL seeks ideas and recommendations on what challenges employers and workers may face with a return to work and what companies and employees can best do to reopen workplaces safely. The information obtained will be used to guide the DOL in developing compliance assistance materials for return to work and to assist lawmakers in drafting policy on reopening businesses.
In a guidance dated March 18, 2020, and discussed in further detail in this blog post, the Equal Employment Opportunity Commission (EEOC) made it clear that employers are entitled to monitor employees’ temperatures during the pandemic in order minimize the spread of COVID-19.
The Americans with Disabilities Act prohibits medical examinations unless they are job-related and consistent with business necessity, and taking an employee’s body temperature is regarded as a medical examination. Given recommendations by the Centers for Disease Control and Prevention, the EEOC amended its previous guidance that prohibiting temperature taking to allow it in these circumstances. There are, however, a number of issues associated with temperature taking that which employers should consider.
On May 1, 2020 the Governor’s Economic Reopening Task Force issued Universal Guidelines for all New Hampshire employers and employees. The guidelines apply to organizations deemed essential and that remained open during the “Stay at Home Order,” as well as to those now set to reopen fully or partially in the coming weeks.
The Guidelines are based on recommendations from the Centers for Disease Control, the Equal Employment Opportunity Commission, and the Occupational Safety and Health Association. As CDC guidance continues to evolve, businesses should frequently check for updated information. In addition to the general guidelines, industry specific guidance has been developed for businesses such as retail stores, restaurants, barber shops, hair salons, and golf courses. The Universal Guidelines are designed to strike a balance between ensuring public safety and allowing New Hampshire businesses to remain open.
On Thursday, April 23, the federal Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 guidance for employers to include a provision allowing employers to test employees for the COVID-19 virus without running afoul of the Americans with Disabilities Act (“ADA”).
During the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) is delaying the issuance of “Notice of Right to Sue” letters to workers. While not publicly announced by the agency, officials have confirmed this practice to advocacy groups and media outlets.
The Notice of Right to Sue letter begins the clock ticking as to when plaintiffs must bring a lawsuit against a company for discrimination under federal law. Specifically, once workers receive this EEOC notice, they have 90 days to file a complaint in federal or state court. The 90 days deadline to file in court is a statutory deadline that must be met and cannot be changed by the EEOC. On the other hand, when the notice that triggers this statutory clock is sent to workers is within the control of the EEOC. It appears that the EEOC is taking this opening.
The federal CARES Act made provision for previously ineligible individuals to obtain unemployment through the Pandemic Unemployment Assistance program (“PUA”). The program is administered by the state, but funded with federal money. It provides up to 39 weeks of assistance for qualifying individuals out of work because of a COVID-19 related reason.
Weekly benefits will equal approximately 50 percent of the individuals’ average weekly earnings. PUA recipients will also receive a weekly $600 payment, not linked to past income.
Individuals now likely to be eligible for benefits include 1099 self-employed individuals, individuals with a limited employment history, and employees of religious institutions exempt from traditional unemployment. A list of eligible individuals can be found here.
Until this week workers were unable to apply since a separate platform had to be created for this purpose. Eligible individuals can now apply at https://www.mass.gov/how-to/apply-for-pandemic-unemployment-assistance.
Workers will initially be paid retroactive to March 20, 2020 but may thereafter seek benefits back to January 27, 2020 if documentation supports their having been out of work for that long.
The Families First Coronavirus Response Act (FFCRA) requires small and midsize businesses to provide paid sick leave to their employees through two of its provisions: (1) the Emergency Paid Sick Leave Act (EPSLA); and (2) the Emergency Family and Medical Leave Expansion Act (Expanded FMLA). (For more information and model sick leave policies, please visit McLane Middleton’s Coronavirus Resource Center here). Under FFRCA, employers subject to the EPSLA and Expanded FMLA paid leave requirements are entitled to fully refundable tax credits to cover the cost of the leave required to be paid to employees for those periods when they are unable to work. Certain self-employed individuals in similar circumstances are entitled to similar credits.
Under Section 2102 of the Coronavirus Aid, Relief, and Economic Security Act (CARES) Act enacted on March 27, 2020, certain individuals who would not normally qualify for unemployment compensation are eligible for Pandemic Unemployment Assistance (PUA) benefits if they are unable to continue working as a result of COVID-19. On April 10, 2020, the USDOL issued guidance to the states around implementation of PUA. The guidance and links to additional information can be found at https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=4628.
On April 1, 2020, the U.S. Department of Labor’s Wage and Hour Division posted temporary regulations for the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA) to provide employers with guidance to administer these two new paid leave laws under the Families First Coronavirus Response Act (FFCRA). The rule became operational on April 1, 2020 and is set to expire on December 31, 2020. The final rule (29 CFR § 826) officially published in the Federal Register today, April 6, 2020.
FFCRA, as amended by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), authorizes the Secretary of Labor to issue regulations “as necessary, to carry out the purposes of this Act, including to ensure consistency” between the EPSLA and the EFMLEA. This blog attempts to highlight only some of these rules. Other posts on the requirements of FFCRA, including DOL guidance to date, can be found at the McLane Middleton’s Coronavirus Resource page.