In response to new guidance being issued, a new post was written: Further Guidance Issued for Employers Regarding the Families First Coronavirus Response Act In addition to Jennifer Shoemaker, this post was authored with input from Paul Keneally and Alina Nadir. Yesterday, the US Department of Labor (DOL) published its “Guidance for Preparing Workplaces for Coronavirus.” The Guidance provides information to employees and employers about how each can utilize the protections and relief offered by the Families First Coronavirus Response Act (FFRCA), which takes effect on April 1, 2020. FFRCA gives business with fewer than 500 employees funds to provide employees with paid leave either for their own health, or to care for a family member. The leave provisions apply to leave taken between April 1, 2020 and December 31, 2020. The Guidance consists of a Fact Sheet for Employees, a Fact Sheet for Employers, and a Questions and Answers document. You can find the full text of each below, or on the United States Department of Labor website. A workplace poster will be published later this week, as well as additional information and another question and answer document. Once published, employers should post and/or distribute the information to employees. Businesses with fewer than 50 employees may apply for a small business exemption if providing the leave would jeopardize the viability of the business. Additional regulations will be published to detail how small businesses can apply for such exemption at a later date. Of note, although the DOL will enforce the leave provisions, the Guidance refers Employers to the United States Department of Treasury for information regarding the dollar for dollar tax credit for all qualifying wages paid to employees who qualify for FFCRA leave, up to the appropriate per diem and aggregate payment caps. Tax credits also extend to amounts paid or incurred to maintain health coverage. You can find additional information here. The Question and Answer sheet explains how employers calculate hours worked for part-time employees, and instructs employers that overtime hours must be included if an employee would normally be scheduled to work more than 40 hours in a week, however the amount paid is subject to a cap as detailed in the FFCRA. Employers should review the published information carefully, as there are requirements for employees who receive tips, commissions or piece rates. Check back frequently for additional information, and/or contact us (we are fully operational and working remotely), at: Paul Keneally 585-258-2882 Jennifer Shoemaker 585-258-2825 Alina Nadir 585-258-2805 You can view more COVID-19-related posts in our COVID-19 Resource Area here. FAMILIES FIRST CORONA VIRUS RESPONSE ACT: EMPLOYEE PAID LEAVE RIGHTS The Families First Coronavirus Response Act (FFCRA or Act) requires certain employers to provide employees with paid sick or family leave for specified reasons related to COVID-19. The Department of Labor’s (Department) Wage and Hour Division (WHD) administers and enforces the new law’s paid leave requirements. These provisions will apply from the effective date through December 31, 2020. Generally, the Act provides that employees of covered employers are eligible for: Two weeks (up to 80 hours) of paid sick time at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or Two weeks (up to 80 hours) of paid sick time at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and Up to an additional 10 weeks of paid sick leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19. Covered Employers: The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees.[1] Most employees of the federal government are covered by Title II of the Family and Medical Leave Act, which was not amended by this Act, and are therefore not covered by the expanded family and medical leave provisions of the FFCRA. However, federal employees covered by Title II of the Family and Medical Leave Act are covered by the paid sick leave provision. Small businesses 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. Eligible Employees: All employees of covered employers are eligible for two weeks of paid sick time for specified reasons related to COVID-19. Employees employed for at least 30 days are eligible for up to an additional 10 weeks of paid family leave to care for a child under certain circumstances related to COVID-19.[2] Notice: Where leave is foreseeable, an employee should provide notice of leave to the employer as is practicable. After the first workday of paid sick time, an employer may require employees to follow reasonable notice procedures in order to continue receiving paid sick time. Qualifying Reasons for Leave: Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee: is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; has been advised by a health care provider to self-quarantine related to COVID-19; is experiencing COVID-19 symptoms and is seeking a medical diagnosis; is caring for an individual subject to an order described in (1) or self-quarantine as described in (2); is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury. Under the FFCRA, an employee qualifies for expanded family and medical leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19. Duration of Leave: For reasons (1)-(4) and (6): A full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period. For reason (5): A full-time employee is eligible for up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family & medical leave) at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period. Calculation of Pay:[3] For leave reasons (1), (2), or (3): employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period). For leave reasons (4) or (6): employees taking leave are entitled to pay 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 the aggregate (over a 2-week period). For leave reason (5): employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period).[4] [1] Certain provisions may not apply to certain employers with fewer than 50 employees. See Department FFCRA regulations (expected April 2020). [2] Under the Act, special rules apply for Health Care Providers and Emergency Responders. [3] Paid sick time provided under this Act does not carryover from one year to the next. Employees are not entitled to reimbursement for unused leave upon termination, resignation, retirement, or other separation from employment. [4] An employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for the first two weeks of partial paid leave under this section. FAMILIES FIRST CORONOAVIRUS RESPONSE ACT: EMPLOYER EXPANDED FAMILY AND MEDICAL LEAVE REQUIREMENTS The Families First Coronavirus Response Act (FFCRA or Act) requires certain employers to provide their employees with expanded family and medical leave for specified reasons related to COVID-19.[1] The Department of Labor’s (Department) Wage and Hour Division (WHD) administers and enforces the new law’s paid leave requirements. These provisions will apply from the effective date through December 31, 2020. Generally, the Act provides that covered employers must provide to all employees:[2] Two weeks (up to 80 hours) of expanded family and medical leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or Two weeks (up to 80 hours) of expanded family and medical leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor. A covered employer must provide to employees that it has employed for at least 30 days:[3] Up to an additional 10 weeks of expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19. Covered Employers: The expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees.[4] Most employees of the federal government are covered by Title II of the Family and Medical Leave Act, which was not amended by this Act, and are therefore not covered by the expanded family and medical leave provisions of the FFCRA. However, federal employees covered by Title II of the Family and Medical Leave Act are covered by the paid sick leave provision. Small businesses 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. Qualifying Reasons for Leave: Under the FFCRA, an employee qualifies for expanded family and medical leave if the employee is unable to work (or unable to telework) due to a need for leave because the employee: is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; has been advised by a health care provider to self-quarantine related to COVID-19; is experiencing COVID-19 symptoms and is seeking a medical diagnosis; is caring for an individual subject to an order described in (1) or self-quarantine as described in (2); is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury. Under the FFCRA, an employee qualifies for expanded family and medical leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19. Duration of Leave: For reasons (1)-(4) and (6): A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period. For reason (5): A full-time employee is eligible for up to 12 weeks of leave at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period. Calculation of Pay:[5] For leave reasons (1), (2), or (3): employees taking leave shall be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period). For leave reasons (4) or (6): employees taking leave 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 the aggregate (over a 2-week period). For leave reason (5): employees taking leave 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 $12,000 in the 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).[6] Tax Credits: Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, up to the appropriate per diem and aggregate payment caps. Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage. For more information, please see the Department of the Treasury’s website. Employer Notice: Each covered employer must post in a conspicuous place on its premises a notice of FFCRA requirements.[7] Prohibitions: Employers may not discharge, discipline, or otherwise discriminate against any employee who takes expanded family and medical leave under the FFCRA and files a complaint or institutes a proceeding under or related to the FFCRA. Penalties and Enforcement: Employers in violation of the first two weeks’ expanded family and medical leave or unlawful termination provisions of the FFCRA will be subject to the penalties and enforcement described in Sections 16 and 17 of the Fair Labor Standards Act. 29 U.S.C. 216; 217. Employers in violation of the provisions providing for up to an additional 10 weeks of expanded family and medical leave to care for a child whose school or place of care is closed (or child care provider is unavailable) are subject to the enforcement provisions of the Family and Medical Leave Act. The Department will observe a temporary period of non-enforcement for the first 30 days after the Act takes effect, so long as the employer has acted reasonably and in good faith to comply with the Act. For purposes of this non-enforcement position, “good faith” exists when violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the Department receives a written commitment from the employer to comply with the Act in the future. [1] Wage and Hour Division does not administer this aspect of the law, but notes that every dollar of expanded family and medical leave (plus the cost of the employer’s health insurance premiums during leave) will be 100% covered by a dollar-for-dollar refundable tax credit available to the employer. For more information, please see the Department of the Treasury’s website. [2] Employers of Health Care Providers or Emergency Responders may elect to exclude such employees from eligibility for the leave provided under the Act. [3] Employers of Health Care Providers or Emergency Responders may elect to exclude such employees from eligibility for the leave provided under the Act. [4] Certain provisions may not apply to certain employers with fewer than 50 employees. See Department FFCRA regulations (expected April 2020). [5] Expanded family and medical leave provided under this Act does not carry over from one year to the next. Employees are not entitled to reimbursement for unused leave upon termination, resignation, retirement, or other separation from employment. [6] An employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for the first two weeks of partial expanded family and medical leave under this section. [7] The Department will issue a model notice no later than March 25, 2020. FAMILIES FIRST CORONAVIRUS RESPONSE ACT: QUESTIONS AND ANSWERS As provided under the legislation, the U.S. Department of Labor will be issuing implementing regulations. Additionally, as warranted, the Department will continue to provide compliance assistance to employers and employees on their responsibilities and rights under the FFCRA. DEFINITIONS “Paid sick leave” – means paid leave under the Emergency Paid Sick Leave Act. “Expanded family and medical leave” – means paid leave under the Emergency Family and Medical Leave Expansion Act. QUESTIONS & ANSWERS 1. What is the effective date of the Families First Coronavirus Response Act (FFCRA), which includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act? The FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020. 2. As an employer, how do I know if my business is under the 500-employee threshold and therefore must provide paid sick leave or expanded family and medical leave? You have fewer than 500 employees if, at the time your employee’s leave is to be taken, you employ fewer than 500 full-time and part-time employees within the United States, which includes any State of the United States, the District of Columbia, or any Territory or possession of the United States. In making this determination, you should include employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer’s payroll); and day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship). Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than employees, are not considered employees for purposes of the 500-employee threshold. Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act. In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act. 3. If I am a private sector employer and have 500 or more employees, do the Acts apply to me? No. Private sector employers are only required to comply with the Acts if they have fewer than 500 employees.[1] 4. If providing child care-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption? To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations. You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave. 5. How do I count hours worked by a part-time employee for purposes of paid sick leave or expanded family and medical leave?A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. Therefore, you calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that. If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment. 6. When calculating pay due to employees, must overtime hours be included? Yes. The Emergency Family and Medical Leave Expansion Act requires you to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week. However, the Emergency Paid Sick Leave Act requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80. If the employee’s schedule varies from week to week, please see the answer to Question 5, because the calculation of hours for a full-time employee with a varying schedule is the same as that for a part-time employee. Please keep in mind the daily and aggregate caps placed on any pay for paid sick leave and expanded family and medical leave as described in the answer to Question 7. Please note that pay does not need to include a premium for overtime hours under either the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act. 7. As an employee, how much will I be paid while taking paid sick leave or expanded family and medical leave under the FFCRA? It depends on your normal schedule as well as why you are taking leave. If you are taking paid sick leave because you are unable to work or telework due to a need for leave because you (1) are subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) are experiencing symptoms of COVID-19 and are seeking medical diagnosis, you will receive for each applicable hour the greater of: your regular rate of pay, the federal minimum wage in effect under the FLSA, or the applicable State or local minimum wage. In these circumstances, you are entitled to a maximum of $511 per day, or $5,110 total over the entire paid sick leave period. If you are taking paid sick leave because you are: (1) caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; or (3) experiencing any other substantially-similar condition that may arise, as specified by the Secretary of Health and Human Services, you are entitled to compensation at 2/3 of the greater of the amounts above. Under these circumstances, you are subject to a maximum of $200 per day, or $2,000 over the entire two-week period. If you are taking expanded family and medical leave, you may take paid sick leave for the first ten days of that leave period, or you may substitute any accrued vacation leave, personal leave, or medical or sick leave you have under your employer’s policy. For the following ten weeks, you will be paid for your leave at an amount no less than 2/3 of your regular rate of pay for the hours you would be normally scheduled to work. The regular rate of pay used to calculate this amount must be at or above the federal minimum wage, or the applicable state or local minimum wage. However, you will not receive more than $200 per day or $12,000 for the twelve weeks that include both paid sick leave and expanded family and medical leave when you are on leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. To calculate the number of hours for which you are entitled to paid leave, please see the answers to Questions 5-6 that are provided in this guidance. 8. What is my regular rate of pay for purposes of the FFCRA? For purposes of the FFCRA, the regular rate of pay used to calculate your paid leave is the average of your regular rate over a period of up to six months prior to the date on which you take leave.[2] If you have not worked for your current employer for six months, the regular rate used to calculate your paid leave is the average of your regular rate of pay for each week you have worked for your current employer. If you are paid with commissions, tips, or piece rates, these wages will be incorporated into the above calculation. You can also compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period. 9. May I take 80 hours of paid sick leave for my self-quarantine and then another amount of paid sick leave for another reason provided under the Emergency Paid Sick Leave Act? No. You may take up to two weeks—or ten days—(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave for any combination of qualifying reasons. However, the total number of hours for which you receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act. 10. If I am home with my child because his or her school or place of care is closed, or child care provider is unavailable, do I get paid sick leave, expanded family and medical leave, or both—how do they interact? You may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. You may take both paid sick leave and expanded family and medical leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless the you elect to use existing vacation, personal, or medical or sick leave under your employer’s policy. After the first ten workdays have elapsed, you will receive 2/3 of your regular rate of pay for the hours you would have been scheduled to work in the subsequent ten weeks under the Emergency and Family Medical Leave Expansion Act. Please note that you can only receive the additional ten weeks of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act for leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. 11. Can my employer deny me paid sick leave if my employer gave me paid leave for a reason identified in the Emergency Paid Sick Leave Act prior to the Act going into effect? No. The Emergency Paid Sick Leave Act imposes a new leave requirement on employers that is effective beginning on April 1, 2020. 12. Is all leave under the FMLA now paid leave? No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds ten days. This includes only leave taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. 13. Are the paid sick leave and expanded family and medical leave requirements retroactive? No. 14. How do I know whether I have “been employed for at least 30 calendar days by the employer” for purposes of expanded family and medical leave? You are considered to have been employed by your employer for at least 30 calendar days if your employer had you on its payroll for the 30 calendar days immediately prior to the day your leave would begin. For example, if you want to take leave on April 1, 2020, you would need to have been on your employer’s payroll as of March 2, 2020. If you have been working for a company as a temporary employee, and the company subsequently hires you on a full-time basis, you may count any days you previously worked as a temporary employee toward this 30-day eligibility period. [1] If you are a Federal employee, you are eligible to take paid sick leave under the Emergency Paid Sick Leave Act. But only some Federal employees are eligible to take expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act. Your eligibility will depend on whether you are covered under Title I or Title II of the Family Medical Leave Act. The Department encourages Federal employees to discuss questions about their eligibility for expanded family and medical leave with their employers or with the Office of Personnel Management. Additional FAQs regarding public sector employers will be forthcoming. [2] If you are a Federal employee, the State or local minimum wage would be used to calculate the wages owed to you only if the Federal agency that employs you has broad authority to set your compensation and has decided to use the State or local minimum wage.

In our earlier post: Gov. Cuomo Requires Non-Essential Businesses to Reduce In-Person Workforce by 100% we provided the list of businesses the state deemed essential at the time. On March 27, 2020, Empire State Development issued updated guidance under Executive Order 202.6 for business and not for profit entities to determine whether they are an “Essential Business“. The additions and changes to the prior guidance are below in blue: 1. Essential Health Care Research and laboratory services Hospitals Walk-in-care health clinics and facilities Emergency veterinary, livestock services Senior/elder care Medical wholesale and distribution Home health care workers or aides for the elderly Doctor and emergency dental Nursing homes, or residential health care facilities or congregate care facilities Medical supplies and equipment manufacturers and providers Licensed mental health providers Licensed substance abuse treatment providers Medical billing support personnel 2. Essential Infrastructure Public and private utilities including but not limited to power generation, fuel supply and transmission Public water and wastewater Telecommunications and data centers Airports/airlines Commercial shipping vessels/ports and seaports Transportation infrastructure such as bus, rail, for-hire vehicles, garages Hotels and places of accommodation 3. Essential Manufacturing Food processing, manufacturing agents, including all foods and beverages Chemicals Medical equipment/instruments Pharmaceuticals Sanitary products including personal care products regulated by the Food and Drug Administration Telecommunications Microelectronics/semi-conductor Food-producing agriculture/farms Household paper products Defense industry and the transportation infrastructure 4. Essential Retail Grocery stores including all food and beverage stores Pharmacies Convenience stores Farmer’s markets Gas stations Restaurants/bars (but only for take-out/delivery) Hardware, appliance and building material stores Pet food 5. Essential Services Trash and recycling collection, processing and disposal Mail and shipping services Laundromats and other clothing/fabric cleaning services Building cleaning and maintenance Child care services Bicycle repair Auto repair Automotive sales conducted remotely or electronically, with in-person vehicle return and delivery by appointment only Warehouse/distribution and fulfillment Funeral homes, crematoriums and cemeteries Storage for essential businesses Maintenance for the infrastructure of the facility or to maintain or safeguard materials or products therein Animal shelters/ and animal care 6. News Media 7. Financial Institutions Banks or lending institution Insurance Payroll Accounting Services related to financial markets 8. Providers of basic necessities to economically disadvantaged populations including: Homeless shelters and congregate care facilities Food banks Human services providers whose function includes the direct care of patients in state-licensed or funded voluntary programs; the care, protection, custody and oversight of individuals both in the community and in state-licensed residential facilities; those operating community shelters and other critical human services agencies providing direct care or support 9. Construction All non-essential construction must shut down except emergency construction, (e.g. a project necessary to protect health and safety of the occupants, or to continue a project if it would be unsafe to allow to remain undone until it is safe to shut the site). Essential construction may continue and includes roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters. At every site, if essential or emergency non-essential construction, this includes maintaining social distance, including for purposes of elevators/meals/entry and exit. Sites that cannot maintain distance and safety best practices must close and enforcement will be provided by the state in coordination with the city/local governments. This will include fines of up to $10,000 per violation. For purposes of this section construction work does not include a single worker, who is the sole employee/worker on a job site. 10. Defense Defense and national security-related operations supporting the U.S. Government or a contractor to the US government 11. Essential services necessary to maintain the safety, sanitation and essential operations of residences or other businesses including: Law enforcement, including corrections and community supervision Fire prevention and response Building code enforcement Security Emergency management and response, EMS and 911 dispatch Building cleaners or janitors General maintenance whether employed by the entity directly or a vendor Automotive repair Disinfection Residential moving services 12. Vendors that provide essential services or products, including logistics and technology support, child care and services including but not limited to: Logistics Technology support for online services Child care programs and services Government owned or leased buildings Essential government services Any personnel necessary for on-line or distance learning or classes delivered via remote means For more detailed information on these matters see the full guidance memorandum at https://esd.ny.gov/guidance-executive-order-2026 If you have any questions, please contact us here or at 585-258-2800. You can view more COVID-19-related posts in our COVID-19 Resource Area here.

Through the issuance of two Executive Orders by New York State Governor Cuomo occasioned by the COVID-19 crisis, the Governor has taken action to expand the pool of healthcare practitioners available to meet the needs of New York residents. For a period through mid-April 2020, the otherwise applicable New York State laws rules and regulations are relaxed to allow: 1. Physicians, physician assistants, nurse practitioners, registered nurses, licensed practical nurses, respiratory therapists and radiologic technologists that are licensed and in good standing in any state to practice within New York State; 2. Physician assistants, specialist assistants and nurse practitioners to provide medical services appropriate to their education, training and experience, without the usually required physician supervision, written practice agreement or collaboration relationship, as applicable; and 3.“Retired“ practitioners, including physicians, physician assistants, nurse practitioners, registered nurses, licensed practical nurses and radiologic technologists who are licensed and in good standing in their respective field but not registered to practice with New York, to nevertheless practice in New York State. It should also be noted that Governor Cuomo granted qualified immunity to medical personnel who are treating patients with COVID-19. Specifically, Executive Order 202.10 grants immunity from liability for all physicians, physician assistants, specialist assistants, nurse practitioners, licensed registered professional nurses and licensed practical nurses caring for COVID-19 patients so long as the provider does not act with gross negligence. This Executive Order only applies to providers who are treating COVID-19 patients. Margaret E. Somerset wrote about this qualified immunity earlier in the week. To learn more, please see her post here. For more information on these matters see New York Executive Orders 202.5 and 202.10 As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800. You can view more COVID-19-related posts in our COVID-19 Resource Area here.

Last week Governor Cuomo instituted New York State on P.A.U.S.E. (Policies Assure Uniform Safety for Everyone), ordering 100% of the non-essential workforce to stay at home. While necessary to fight the novel coronavirus, known as COVID-19, the Governor’s recent Executive Orders will have significant legal consequences for those businesses in contractual relationships. This is also a fraught period for businesses with State and Federal Laws changing daily. However, in the midst of all of this uncertainty, businesses must keep an eye to the future and the potential contractual implications of the COVID-19 crisis. By taking a proactive approach now, companies may be able to reduce or avoid future contract litigation stemming from this crisis. Businesses should immediately take the following steps: Create an inventory of contracts that could be affected by COVID-19; Review the terms of each contract paying special attention to force majeure, notice and default provisions; Determine whether the parties to each contract will be able to continue performance of the contract; and Begin taking steps to mitigate any losses if it is anticipated that the contract will not be performed. Crucial to a review of any contract will be an analysis of the force majeure provisions of the contract. Put simply, a force majeure clause excuses a party’s nonperformance of its obligations under the contract due to extraordinary circumstances beyond the parties’ control which make performance impossible, illegal, commercially unreasonable or impractical. Although force majeure clauses are common, in New York, their applicability to business interruption due to the Coronavirus will depend heavily on the specific language used by the parties in the contract. New York Courts interpret force majeure clauses narrowly. “Ordinarily, only if the force majeure clause specifically includes the event that actually prevents a party’s performance will that party be excused.” Kel Kim Corp. v. Central Markets, Inc., 70 N.Y.2d 900, 902 (1987). Force majeure clauses often include notice provisions and contractual prerequisites, which must be adhered to in order to invoke the force majeure defense. Any notice requirements and prerequisites outlined in the force majeure clause should be adhered to with specificity as a failure to follow the requirements of the contract will likely lead to an inability to use the force majeure clause. Conversely, those businesses seeking to enforce a contract should be on the lookout for the nonperforming party’s failure to abide by any preconditions required by the contract to defeat application of the force majeure clause. During this early period of New York State on P.A.U.S.E., companies should also try to mitigate the effects of the recent Executive Orders on their contracts. New York Courts generally require parties to a contract to attempt to mitigate the risk of nonperformance of the contract. For example, if a supplier in New York State can no longer produce its product because it is deemed a nonessential service, the non-breaching party should attempt to procure product from an out-of-state supplier still allowed to do business. Even if the non-breaching party is unsuccessful in procuring another source for the product, the attempt to minimize losses will be highly relevant in future litigation. A review of all business interruption insurance policies should be included in the inventory and review of contracts. These policies are intended to cover lost revenue, fixed expenses (rent, utility, etc.) and/or expenses related to temporary operations in an alternate location. In the wake of the SARS epidemic, many insurers expressly excluded viral or bacterial outbreaks from standard business interruption insurance coverage. Additionally, business interruption insurance usually requires physical property damage. However, companies should thoroughly examine their policies to ascertain whether losses due to the COVID-19 pandemic may be covered. If you believe you are entitled to business interruption coverage, ensure compliance with all requirements including providing timely notice to your carrier of a claim. Although legal services were not included on Governor Cuomo’s list of essential services, attorneys are continuing to provide representation to their clients remotely from home. Businesses should keep in close communication with their legal advisors and consult with counsel for questions regarding how the COVID-19 pandemic may affect their contracts and the potential consequences if either party is unable to perform. The courts may be shut down for now, but interpretation of force majeure clauses will be a hot legal topic in the coming months. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800. You can view more COVID-19-related posts in our COVID-19 Resource Area here.

Every day all medical providers treating patients with COVID-19 are doing the best they can with the resources and information that they have available to them. The clinical data on the virus is being updated daily and so are the recommendations for treatment. For all providers caring for these patients, the effort to keep up with changing treatment recommendations can feel overwhelming. In addition, many mid-level providers have been taking on increased responsibilities in order to ‘bring all hands on-deck’ to care for the increased number of patients. During this difficult time, medical providers should not have to worry about whether their decisions will be challenged years from now as medically negligent if their patients fail to recover from COVID-19. To alleviate this anxiety, Gov. Andrew M. Cuomo issued an Executive Order which grants qualified immunity to medical personnel who are treating patients with COVID-19. Executive Order 202.10 grants immunity from liability for all physicians, physician assistants, specialist assistants, nurse practitioners, licensed registered professional nurses and licensed practical nurses caring for COVID-19 patients so long as the provider does not act with gross negligence. This Executive Order only applies to providers who are treating COVID-19 patients. This means that if these providers continue to act in good faith and use their best judgement, based upon the information available to them at the time, they will not be liable for claims of medical negligence or medical malpractice. Executive Order 202.10 specifically provides that: “…[T]o the extent necessary to provide that all physicians, physician assistants, specialist assistants, nurse practitioners, licensed registered professional nurses and licensed practical nurses shall be immune from civil liability for any injury or death alleged to have been sustained directly as a result of an act or omission by such medical professional in the course of providing medical services in support of the State’s response to the COVID-19 outbreak, unless it is established that such injury or death was caused by the gross negligence of such medical professional…” This Executive Order is valid through April 22, 2020. We will continue to monitor changes to the laws and regulations affecting health care providers and will provide updates as frequently as necessary. You can read the entire Executive Order here. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800. You can view more COVID-19-related posts in our COVID-19 Resource Area here.

In response to the economic injury that small businesses (and individuals) have experienced and continue to experience as a result of the COVID-19 pandemic and the response thereto, the federal government is providing SBA Economic Injury Disaster Loans (“EIDL”) and the New York Attorney General is suspending debt collection activities. These federal and state relief efforts may provide significant financial relief to our small business clients as a result of COVID-19. Additionally, Executive Order 202.5 authorizes corporations to take action electronically, in order to facilitate formal corporate actions during the COVID-19 public health emergency. Below are details about each of the foregoing government programs and actions for your consideration in determining the next steps your business should take. SBA Economic Injury Disaster Loan (EIDL) Program[1] Under the EIDL program, disaster relief loans are available to small businesses and private, non-profit organizations throughout New York State that suffer economic injury from the COVID-19 pandemic. The SBA’s definition of “small business” looks to the number of employees and average annual revenue of a business, but specific amounts vary between industries. These loans are intended to assist small businesses in maintaining reasonable working capital, which will permit them to continue to pay expenses such as fixed debts (payments that come due during this period, but not refinancing long-term debts), accounts payable, payroll and other bills, that these businesses would have been able to meet had the pandemic not occurred. Generally, eligible small businesses may obtain loans of up to $2 million, bearing fixed interest at 3.75%, with a maximum term of 30-years. The actual amount of each loan is limited to the economic injury determined by the SBA. Loans are available to small businesses only when SBA determines they are unable to obtain credit elsewhere. In determining the loan amount, the SBA will consider whether potential contributions are available from the business, its affiliates, and its owners, and business interruption insurance. To be eligible for an EIDL, an applicant must be a small business as defined by the SBA. An applicant must also have a credit history acceptable to SBA and show the ability to repay the loan. An applicant that has not complied with the terms of a previous SBA loan may be ineligible for an EIDL. Additionally, for loans over $25,000, collateral is required. Loans will be made on a case-by-case basis; however, any small business client that will struggle to meet their payroll and similar obligations due to COVID-19, and meet the eligibility requirements, should apply for these loans if other credit is not available. To determine if your business qualifies as a small business for the EIDL program, visit the SBA website. New York Attorney General Suspension of Debt Collection Program Individuals and businesses that have been financially impacted by the COVID-19 pandemic may apply for temporary relief from debt collection and litigation activities conducted by the Attorney General (AG). This relief program should be considered for clients whose debt(s) to the state are overdue and being enforced by the AG. Relief that may be provided under this program includes temporarily waiving pre-judgment interest and collection fees, including interest and collection fees under the State Finance Law, and post-judgment interest that accrues under Civil Practice Law & Rules (C.P.L.R.) on filed judgments; the decertification of debts from the Statewide Offset Program which intercepts tax refunds and contract payments to debtors; tolling time periods for applying interest and collection fees under the State Finance Law; ceasing enforcement actions for accounts in judgment; and postponing payments due to, or modifying payment agreements with, the AG. An applicant must provide the AG with information about the impact COVID-19 has had on the applicant or their business, including specific information and documentation that demonstrates a material financial impact. No further information or guidance as to applicant eligibility and factors that will be considered in approving these applications has yet been published. The application is online. Executive Order 202.5: Suspension of Section 708(b) of the Business Corporation Law Executive Order 202.5 temporarily suspends 708(b) of New York Business Corporation Law “to the extent necessary to permit business corporations to take any action otherwise permitted under that section with the electronic consent of the members of the board or committee, when such consent is submitted via electronic mail along with information from which it can reasonably be determined that the transmission was authorized by such member.” Previously, unless a corporation had in its certificate of incorporation or bylaws a provision that allowed the board or a committee to “take action” (that is, vote) without a meeting, the corporation would have to hold a meeting – in person or by telephone or other electronic means (if the latter was permitted in the bylaws; if not, then an in-person meeting was necessary). This order now allows corporations to take action by “unanimous written consent” done by emails sent by each director or committee member. The email must clearly indicate who the sender is (so, for example, if someone has a “funky” email address that doesn’t clearly identify the sender, that person would be need to type in their name, too). As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800. You can view more COVID-19-related posts in our COVID-19 Resource Area here. [1] Fact Sheet, New York Declaration 164346; https://disasterloan.sba.gov; https://www.benefits.gov/benefit/1504

On March 20, 2020, New York Governor Andrew Cuomo announced his 10-Point Policy that Assures Uniform Safety for Everyone (PAUSE). The directive includes that all non-essential businesses statewide must close in-office personnel functions effective at 8PM on Sunday, March 22, and temporarily bans all non-essential gatherings of individuals of any size for any reason. When in public individuals must practice social distancing of at least six feet from others. Additionally, the Governor signed Executive Order 202.8, which temporarily suspended statute of limitations, service, and other legal time periods through April 19, 2020. Relative to the statute of limitations, the order specifically provides that: In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020. This order means that those up against a deadline to initiate an action now have an extension of time through and including April 19, 2020. Moreover, the order clarifies that there shall be no enforcement of an eviction or foreclosure proceeding against any resident or commercial tenant for a period of 90 days. NYS lawmakers continue to respond as the COVID-19 crisis changes the way we work and live. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800. You can view more COVID-19-related posts in our COVID-19 Resource Area here.

In response to the COVID-19 virus, New York State has, as of March 22, 2020, stayed almost all pending NYS civil court proceedings and barred the filing of new civil cases (except for those matters designated by NYS as essential). The Federal courts are currently working under fewer formal restrictions, but as courts with more limited jurisdiction, they are not an available forum for the resolution of many business disputes. At the same time, NYS has required nearly every non-essential business “to reduce the in-person workforce at any work locations by 100%.” Although business activity will slow during this public health crisis, businesses will still have legal disputes that arise as a result of this crisis, as well as those that arise in the normal course (if that term even applies these days). Obviously, there will be a deluge of litigation over liability for the economic losses caused by this crisis once it subsides and the NYS courts resume operations. But for today and the near future, the question for many businesses is: How can we protect and enforce our contract rights when we can’t go to a court for relief? Let’s look at that question in the context of a business that buys and sells industrial supplies, depending on an uninterrupted supply chain to meet its customers’ orders. The business’s suppliers may claim that they are unable to deliver ordered materials because they can’t get them, thereby preventing the business from delivering to its customers. In this scenario, all parties are hurt financially, and all parties under an obligation to perform will invoke COVID-19 as an excuse for their failure to perform, raising defenses such as force majeure, frustration and impossibility. Without the available leverage of a potential lawsuit, the business’s best chance for short-term financial relief may be to contact the affected suppliers and customers and try to resolve the competing commercial claims in a cooperative and reasonable way. However, keep in mind that the suspension of some NYS civil litigation laws does not excuse businesses from their contractual obligations under the relevant agreements or NYS law to, for example, give written notice of breach, or to formally declare force majeure or other contractual defenses, or to give assurances of performance when requested. And all relevant documentary and witness evidence should be gathered for use if a dispute escalates. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800. You can view more COVID-19-related posts in our COVID-19 Resource Area here.

In addition to Jennifer Shoemaker, this post was authored with input from Paul Keneally and Alina Nadir. As we’ve seen over the past week, many local governments are enacting social distancing measures in an attempt to slow the spread of the coronavirus (COVID-19). Governor Cuomo announced that effective 3/22/20 at 8 PM all non-essential businesses are ordered to exercise, to the maximum extent possible, remote working procedures. Statewide, each employer providing a non-essential service must reduce their in-person workforce by 100% no later than the effective date and time. In addition, as of the same date and time, all barbershops, hair salons, tattoo or piercing parlors and related personal care services will be closed to members of the public. “This shall also include nail technicians, cosmetologists and estheticians, and the provision of electrolysis, laser hair removal services, as these services cannot be provided while maintaining social distancing.” Also, with respect to Notary Publics, any notarial act that is required under New York State Law is authorized to be performed utilizing audio-video technology. The details can be found here. Businesses providing essential services are not subjected to a restriction of their in-person workforce. New York State defines essential businesses directly in the order as: 1. Essential Health Care Operations Including: Research and laboratory services Hospitals Walk-in-care health facilities Veterinary and animal health services Elder care Medical wholesale and distribution Home health care workers or aides Doctor and dentist offices Nursing homes, or residential health care facilities or congregate care facilities Medical supplies and equipment providers 2. Essential Infrastructure Including: Utilities including power generation, fuel supply and transmission Public water and wastewater Telecommunications and data centers Airports/airlines Transportation infrastructure such as bus, rail, or for-hire vehicles, garages 3. Essential Manufacturing Including: Food processing, including all foods and beverages Chemicals Medical equipment/instruments Pharmaceuticals Safety and sanitary products Telecommunications Microelectronics/semi-conductor Agriculture/farms Paper products 4. Essential Retail Including: Grocery stores including all food and beverage stores Pharmacies Convenience stores Farmer’s markets Gas stations Restaurants/bars (but only for take-out/delivery) Hardware and building material stores 5. Essential Services Including: Trash and recycling collection, processing and disposal Mail and shipping services Laundromats/dry cleaning Building cleaning and maintenance Child care services Auto repair Warehouse/distribution and fulfillment Funeral homes, crematoriums and cemeteries Storage for essential businesses Animal shelters or animal care or management 6. News Media 7. Financial Institutions Including: Banks Insurance Payroll Accounting 8. Providers of Basic Necessities to Economically Disadvantaged Populations Including: Homeless shelters and congregate care facilities Food banks Human services providers whose function includes the direct care of patients in state-licensed or funded voluntary programs; the care, protection, custody and oversight of individuals both in the community and in state-licensed residential facilities; those operating community shelters and other critical human services agencies providing direct care or support 9. Construction Including: Skilled trades such as electricians, plumbers Other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes 10. Defense Defense and natural security-related operations supporting the U.S. Government or a contractor to the US government 11. Essential Services Necessary to Maintain the Safety, Sanitation and Essential Operations of Residences or Other Essential Businesses Including: Law enforcement Fire prevention and response Building code enforcement Security Emergency management and response Building cleaners or janitors General maintenance whether employed by the entity directly or a vendor Automotive repair Disinfection Doormen 12. Vendors that Provide Essential Services or Products, Including Logistics and Technology Support, Child Care and Services Needed to Ensure the Continuing Operation of Government Agencies and Provide for the Health, Safety and Welfare of the Public Including: Logistics Technology support Child care programs and services Government owned or leased buildings Essential government services To read the entire order: https://www.governor.ny.gov/news/no-2027-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency If you think your business provides an essential service and is not included in the list above, click here to file a waiver with the Empire State Development Corporation. If you have any questions, please contact us here or at 585-258-2800. You can view more COVID-19-related posts in our COVID-19 Resource Area here.

In addition to Alina Nadir , this post was authored with input from Paul Keneally and Jennifer Shoemaker . New York State Leave Law New York has enacted a Paid Sick Leave law guaranteeing job protection and providing paid sick leave to employees for mandatory or precautionary orders of quarantine or isolation. The law took effect immediately on March 18, 2020, and the amount of paid sick leave depends on employer size and yearly net income: Employers with 10 or fewer employees and net income of less than $1M: no paid sick days, just access to Paid Family Leave (PFL) and short-term disability (DBL) benefits including wage replacement up to $150,000 Employers with 11-99 employees and net income of $1M or greater: 5 paid sick days and PFL and DBL as described above Employers with 100 or more employees: 14 paid sick days. The job protection lasts for the duration of the quarantine or isolation. Employers must provide notice to employees of the availability of this leave. New York State is expected to provide an example of a notice form for employers’ use. Employers must also provide employees with any PFL and DBL forms necessary for employees to apply for these benefits where applicable. Closures for social distancing purposes do not qualify as mandatory or precautionary order of quarantine or isolation. For example, a school closure that was put in effect to effectuate social distancing does not qualify a person for paid leave under this law. Since the law’s passage last week, there has been confusion regarding what exactly qualifies as a “mandatory or precautionary order of quarantine or isolation” as well as whether the 14 paid sick days applicable to employers of 100 or more meant 14 business days or calendar days. It was also unclear whether the new Matilda’s Law, which instructs individuals in vulnerable populations constitutes an order of quarantine or isolation, would qualify as a order of quarantine or isolation. With further clarification now available, Matilda’s Law does not constitute such an order, and therefore, an employee is not eligible for the NYS paid sick leave due to being in a vulnerable population. Employers of 100 or more whose employees are entitled to 14 days of paid sick leave if under an order of quarantine or isolation must pay such an employee wages equivalent to whatever the employee would have made in a 14-day period. In other words, the employer is not required to provide wages equal to 14 business days but rather wages equal to a 14-day period of time. These benefits are not available to any employee who is deemed asymptomatic or not diagnosed with a medical condition and is physically able to work through remote access or other methods. This leave is not available to employees who are returning from personal travel to a destination on the CDC travel advisory list. For employers with 99 or less employees, if a person is ordered to be quarantined or isolated beyond the time available under this new law, the employee can apply for concurrent PFL and DBL. The waiting period for DBL is waived under these circumstances. PFL and DBL benefits may also be used for when an employee’s dependent minor child is under a mandatory quarantine or isolation order. Families First Coronavirus Response Act On Monday, we described a Bill in the House of Representatives that was quickly drafted to provide relief to Americans as the country deals with the COVID-19 pandemic. Last night, President Trump signed the Families First Coronavirus Response Act into law. The new law is an emergency aid package that will provide paid sick and family leave for many Americans. It also provides for free coronavirus testing, adds to existing unemployment insurance, as well as providing additional Medicaid funding and food assistance. This law goes into effect in 15 days. The law does not apply to employers with more than 500 employees. There is also a possible exemption for a business with fewer than 50 employees if the Department of Labor determines that requiring the business to provide paid leave would “jeopardize the viability of the business as a going concern.” FMLA Expansion An expanded Family and Medical Leave Act will provide up to twelve weeks of FMLA leave and ten of those weeks can be paid leave. Importantly, this benefit is only available for employees who must care for a son or daughter under 18 years old because the child’s school or day care has closed due to the public health emergency. This benefit is capped at $200 a day and a total of $10,000 in the aggregate. Importantly, the first ten days of this leave function as a waiting period. After the leave has passed ten days, the employee is entitled to two-thirds of his or her regular rate of pay. During the 10-day waiting period, the employee may choose to use available paid time off (PTO), vacation or sick time. Traditionally, FMLA leave has only been available to employees who have been employed for 12 months. This expansion is applicable to any employee who has worked for the employer for at least 30 days. The standard FMLA that employers have always administered still applies to employees who have a serious health condition or have to care for a family member with a serious health condition, but it remains unpaid time. Employers with less than 50 employees may be unfamiliar with the requirement to hold an employee’s job during an FMLA protected leave, however, the law does provide some flexibility on job restoration for employers with fewer than 25 employees. The paid family leave provisions will expire on December 31, 2020. Paid Sick Leave The new law also requires emergency sick leave for employees who meet one of the following conditions: The employee is subject to a federal, state or local quarantine or isolation order; The employee has been advised by a health care provider to self-quarantine; The employee is experiencing COVID-19 symptoms and is seeking a diagnosis; The employee is caring for an individual who is subject to a quarantine order or has been advised to self-quarantine; The employee is caring for his or her son or daughter if the school or child care facility is closed or the care provider is unavailable due to COVID-19 precautions; or The employee is experiencing any other substantially similar condition as specified by the Department of Health and Human Services in consultation with the Department of the Treasury and the Department of Labor. The Benefits available to the employee include: Two weeks of paid sick leave at the employee’s regular pay rate to either quarantine or seek a COVID-19 diagnosis for the employee (Situations 1-3 described above). If the employee qualifies for full pay, the benefit is capped at $511 per day or $5,110 in the aggregate. Two weeks of paid sick leave at two-thirds of employee’s regular pay rate if the employee is caring for a family member with a COVID-19 diagnosis or to care for a child whose school or daycare has closed due to COVID-19 concerns (Situations 4-6 described above). If the employee qualifies for two-thirds pay, the benefit is capped at $200 per day or $2,000 in the aggregate. For a full-time employee, he or she should receive an allotment of 80 hours. For part-time employees, the allotment should be equal to the number of hours an employee works on average over a two-week period. Employers cannot force employees who qualify for the paid sick leave to use their existing vacation or sick time before receiving the benefit. The emergency sick time provided for by this law does not carry over from one year to the next. There is no accrual of this emergency sick time, and it is not paid out at the time of an employee’s termination, resignation or retirement. An employer who fails to comply with these provisions will be in violation of the Fair Labor Standards Act. Employees who need to take this leave shall provide their employer with as much notice as is practicable. Notice Requirement Within 7 days, the federal Department of Labor will provide a model notice that employers will have to post to inform employees about the available leave. Employers will likely have to also ensure that employees who are not currently in the workplace due to COVID-19 restrictions are notified of these benefits. Workplaces with Multi-Employer Bargaining Units An employer who has signed onto a multi-employer CBA may fulfill its obligations under this new law by making contributions to a multiemployer fund, plan or program if the practice is consistent with the employer’s bargaining obligations and the applicable CBA. The contributions would be based on each employees’ entitlement of paid sick time under these new provisions so long as the fund, plan or program enables the employees to be paid from that source based on hours worked under the CBA for the uses specified in the Act. Tax Credits for Employers There is a separate payroll tax provision for employers who pay paid leave under the expanded paid FMLA, allowing a 100% credit against the employers’ share of the payroll tax for each employee who requires the leave, limited to $200 per day ($10,000 total). These credits are refundable if they exceed the amount the employer owes in payroll tax. The law includes tax credits for employers who are required to pay sick leave or family leave pursuant to the provisions described above. The paid sick leave payroll tax credit can be claimed on a quarterly basis, equal to 100% of the amount the employer has paid. The credit is subject to the same limits as described above: $511 per day, ($5,110 total) for an employee who requires the time off to care for themselves and $200 per day ($2,000 total) for an employee who requires the time to care for another or a child whose school has closed. Additional Provisions In addition to employment-related provisions, the new law provides the following: $500 million in additional funding for the Women, Infants and Children (WIC) nutrition program $400 million in additional funding for the Emergency Food Assistance Program $82 million in additional funding for the Defense Health Program $250 million in additional funding for food programs, including home delivery food programs, for the elderly and disabled Waivers to some requirements for school lunch programs Waivers to work requirements to be eligible for SNAP food programs Extensions to, and additional funds for, unemployment benefits Free COVID-19 testing without co-pays or deductibles As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800. You can view more COVID-19-related posts in our COVID-19 Resource Area here .

The IRS announced that high deductible health plans (“HDHPs”) with health savings accounts may be used to pay for COVID-19 testing* and treatment, even if participants have not met their deductible amounts. A HDHP with a health savings account (“HSA”) is a health insurance plan that combines traditional medical insurance with a tax-favored savings account. Generally, a participant must first pay for non-preventative health care costs out-of-pocket, up to their deductible amount, before the plan covers those costs. If a plan qualifies as an HDHP, a benefit to its participants is that they can establish an HSA, which is funded with tax-deductible contributions (often referred to as pre-tax dollars because HSA contributions are deducted from an individual’s taxable income). Due to the restriction on payment of non-preventative health care costs by HDHPs until the participant has met their deductible, insurance providers were initially uncertain as to whether or not an HDHP could pay for COVID-19 testing and treatment costs if a participant had not met their deductible without being disqualified as an HDHP. In order to eliminate potential financial barriers to COVID-19 testing and treatment, the IRS Notice 2020-15 (the “Notice”) announced that the IRS is waiving the minimum deductible requirements for HDHPs with respect to COVID-19 testing and treatment. HDHPs are now permitted to pay for costs related to COVID-19 testing and treatment for their participants, whether or not the participants have met their minimum deductibles. Such COVID-19 related expenses will be disregarded for purposes of determining whether a plan is a HDHP and whether its participants are eligible to make tax-deductible contributions to their HSAs. This means that participants will have little to no out-of-pocket expenses if a HDHP opts to cover all or some of the costs associated with COVID-19 testing and treatment, even if they have not yet met their deductible for the year, and participants can continue to make tax-deductible contributions to their HSAs. The Notice only permits, and does not require, that HDHPs cover the costs associated with COVID-19 testing and treatment, therefore, group administrators for employers should check with their insurance provider to find out what COVID-19 related expenses are covered by their plan. The Notice is available here. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800. You can view more COVID-19-related posts in our COVID-19 Resource Area here. *The COVID-19 lab test is being offered free of charge, but other required diagnostic and medical services are not.

In the early hours of Saturday morning the House of Representatives passed an emergency spending bill supported by President Trump addressing the health and economic crisis brought on by the novel coronavirus, COVID-19. While the legislation includes a myriad of provisions designed to lessen the public health and economic consequences of the pandemic, the proposed statute includes significant requirements for employers. Essentially, employers with fewer than 500 employees will be required to provide employees with paid sick leave and family medical leave at no less than two-thirds (2/3) pay for twelve weeks for COVID-19 related reasons. The Senate is expected to pass the bill early this week.[1] These provisions, if passed by the Senate and signed by President Trump will take effect no later than 15 days after enactment. Emergency Family and Medical Leave Expansion Act: Employers with fewer than 500 employees must provide 12 weeks of job-protected leave under the Family Medical Leave Act (FMLA) to employees who have been on the employer’s payroll for 30 days for the following reasons: • The employee has a current COVID-19 diagnosis; • The employee is under quarantine (including self-imposed quarantine) at the instruction of a health care provider, employer, or a local, State, or Federal official in order to prevent the spread of COVID-19; • The employee is providing care for an individual who has a current diagnosis of COVID-19 or who is under quarantine; or • The employee is caring for a child or other individual unable to provide self-care due to a COVID-19 related closing of a school or other care facility or care program. The first fourteen days of emergency FMLA may be unpaid; however, an employee may use accrued vacation, personal or other medical or sick leave (though an employer may not require an employee to do so) during this period. After the two weeks of unpaid leave, employers must pay emergency FMLA leave at a rate of no less than two-thirds (2/3) of the employee’s usual pay rate. The Secretary of Labor may issue regulations to exempt small businesses with fewer than 50 employees where the imposition of these requirements would jeopardize the viability of the business. Exclusions may also be applied to health care providers and emergency responders. An employee who takes this leave must be returned to the same or equivalent position upon their return to work. Employers with fewer than 25 employees may be subject to an exception if the employee’s position no longer exists after the FMLA leave due to an economic downturn or other conditions prompted by a public health emergency. Paid Sick Days for Public Health Emergencies and Personal Family Care: Employers with fewer than 500 employees must provide employees with two weeks of paid sick leave. If the employee is quarantined, diagnosed with or seeks a diagnosis or preventive care for COVID-19, the employer must pay the employee’s full rate of pay. Employees using sick leave to care for a family member or child whose school or childcare provider has closed due to coronavirus must be paid at a rate of not less than two-thirds (2/3) of the employee’s regular rate. Full-time employees are entitled to 80 hours of leave and part-time employees are guaranteed their typical number of hours in a two-week period. Paid sick time does not carry over from previous years and the requirements of paid sick leave will expire on December 31, 2020. Tax Credits for Emergency Paid Sick Leave And Family And Medical Leave: The legislation passed by the House of Representatives provides employers with a series of refundable tax credits to offset the costs of providing paid emergency sick leave and paid FMLA. Employers are entitled to a refundable tax credit equal to 100% of the qualified paid sick leave wages paid by the employer pursuant to the Emergency Paid Sick Leave Act and the qualified family leave wages required to be paid under the Emergency Family and Medical Leave Expansion Act. The tax credits will be allowed against the employer portion of Social Security taxes. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800. You can view more COVID-19-related posts in our COVID-19 Resource Area here. [1] It is important to note that the Senate could make significant changes to this legislation when it takes up its version of the bill. This article is based on information available as of publication.