The following blogpost is compiled, with permission, from the resources provided by Shawe Rosenthal for their “Coronavirus in the Workplace: Practical Guidance for Employers” webinar on March 17, 2020. A recording of that webinar can be accessed by clicking here. The PDF of the webinar can be accessed here.
The novel coronavirus, COVID-19, has interrupted business across the United States on an unprecedented, massive scale. Governor Hogan has introduced many measures to protect the health of the community and to mitigate the damage to Maryland’s economy, in addition to the federal response. In these times, employers are concerned about the health and welfare of their employees as well as business operations.
The President has signed into law the Families First Coronavirus Response Act (FFCRA), which includes a new paid sick leave mandate for COVID-19-related reasons, an expansion of the Family and Medical Leave Act (FMLA), unemployment benefits for COVID-19-related reasons, and a payroll tax credit to fund the paid leave mandate. Notably, both the paid sick leave and the expanded FMLA apply to employers with less than 500 employees, but provide exemptions for employers of healthcare providers and emergency responders, as well as certain employers with fewer than 50 employees due to economic difficulties that have yet to be defined. The law takes effect on April 1, 2020, and the leave provisions sunset on December 31, 2020.
The Emergency Paid Sick Leave Act provides ten days of paid sick leave (80 hours) at the greater of the employee’s regular rate or minimum wage, to a maximum of $511 per day and a total of $5,110, if the employee is unable to work or telework for the following reasons:
Paid sick leave may be paid at 2/3 the employee’s regular rate, to a maximum of $200 per day and a total of $2,000, for an employee who is unable to work or telework for any of the following reasons:
It is important to note that this paid sick leave is in addition to any existing leave currently provided by an employer.
The Emergency Family and Medical Leave Expansion Act permits employees to take FMLA leave if they are unable to work or telework because they have a bona fide need to care for a child due to the closure of the child’s school or child care facility, or the unavailability of a child care provider, due to COVID-19. After the first 10 days of unpaid FMLA leave (which may be covered by the FFCRA’s Paid Sick Leave mandate or other paid leave, at the employee’s choice), the remainder of this type of FMLA leave is paid at 2/3 of the employee’s regular rate, up to a maximum of $200 per day, and $10,000 in total. An employee is eligible for FMLA under this provision if they have been employed for at least 30 days. This is not a new bank of 12 weeks of FMLA leave (except as to employers with fewer than 50 employees); it simply allows eligible employees to use FMLA for this additional reason.
Under the FFCRA, employers will receive a 100% tax credit for both the paid sick leave and paid FMLA leave, though they will need to front this money. The Department of Labor has indicated that employers with insufficient cash flow may withdraw an amount equal to the required paid sick leave and expanded family and medical leave wages from the employer’s Federal payroll tax deposits or, to the extent such deposits are not sufficient, apply for an expedited refund of the credit amount from the IRS to cover the required wages.
Unemployment Insurance currently covers layoffs and closures, but the FFCRA allows states to ease eligibility requirements and access for reasons related to COVID-19, such as illness in the workplace or quarantine reasons. Maryland has, in fact, passed an emergency law to enable employees to receive UI benefits for temporary absences due to COVID-19-related reasons, including being quarantined, being sent home due to risk of exposure to COVID-19, or needing to care for a family member due to COVID-19.
Governor Hogan ordered closure of non-essential businesses to the general public, but such businesses are permitted to continue operation through telecommuting. Even essential businesses are encouraged to let their employees telecommute, if possible. Businesses will face challenges, such as needing to provide equipment or access for employees who do not usually telecommute and maintaining security for confidential company information. In addition, it is important that businesses establish clear expectations regarding schedules, availability, and communications to maintain productivity and quality standards.
This is a constantly evolving situation. Shawe Rosenthal has created a bank of COVID-19 resources, including a comprehensive FAQs webpage that discusses the latest federal law and guidance. Another of these resources, titled “Is Your Business ‘Essential’? More Guidance from Governor Hogan’s Office,” provides guidance on what organizations are essential per Governor Hogan’s executive order, as well as what activities non-essential businesses may engage in. Click here to view our resources.
In addition, the Maryland Chamber of Commerce’s COVID-19 resource page includes information from the Maryland Interagency Website: COVID-19 Information for Business, the Maryland Department of Health, the U.S. Small Business Administration (SBA), Centers for Disease Control and Prevention, the U.S. Chamber of Commerce Resource Tool Kit, Maryland Unites, and the Small Business Resource Center (SBDC), among others.
Shawe Rosenthal includes a disclaimer that you should contact your attorney to obtain advice with respect to any particular issue or problem.
Shawe Rosenthal. 2020. Coronavirus in the workplace: practical guidance for employers [PowerPoint slides]. Retrieved from https://mdchamber.org/wp-content/uploads/2020/03/Coronavirus-in-the-Workplace-A-Practical-Guidance-for-Employers.pdf.
Shawe Rosenthal. 2020. Coronavirus in the workplace: practical guidance for employers [Video webinar]. Retrieved from https://shawe.com/events/webinar-recording-coronavirus-in-the-workplace-practical-guidance-for-employers-2/.
Click here to view up-to-the-minute COVID-19 resources on the Maryland Chamber of Commerce’s COVID-19 resources page.