Workforce Bulletin

Many employers are looking for ways to assist employees directly impacted by COVID-19 and employees on temporary lay-off or furlough who are exhausting their available paid-time-off (PTO). One option employers often ask about is the feasibility of adopting a leave sharing or leave donation program that would permit employees to donate vacation, sick leave or PTO to employees who need the additional time because they have been impacted by COVID-19. Properly structured, leave donated to a co-worker is a viable option, which will not be taxable to the donor but rather taxable to the co-worker when the leave is actually taken.

Employers generally may offer three different types of leave donation programs: (1) a major disaster leave sharing program (2) leave donations for employees on medical leave; and (3) leave donation to an employer-designated public charity or private foundation. Employees on leave for their own COVID-19 medical treatment could be beneficiaries of a medical leave sharing program; if an employee is not on medical leave, however, donating PTO to the employees would require a major disaster leave sharing program.

Major Disaster Leave Sharing. The current IRS guidance on “major disaster leave sharing programs” can be found under IRS Notice 2006-59. Such a program requires that the President declare a major disaster under Section 401(a) of the Stafford Act (or, as to federal employees only, a major disaster or emergency affecting a sufficient number of federal employees).On March 13, 2020, President Trump declared the COVID-19 outbreak to be an “emergency” under Section 501(b) of the Stafford Act. He did not, however, formally declare it a Section 401(a) “disaster,” but merely stated that he would not preclude the possibility that the COVID-19 outbreak would also rise to a Section 401(a) “disaster.” To fully utilize a major disaster leave sharing program, IRS guidance in the form of an announcement, notice or otherwise, would be welcome.

The Illinois “Stay at Home” Order took effect at 5:00 p.m. on March 21, 2020, and will last through April 7 (full text here).  This post will briefly summarize the Order’s application to Illinois businesses, and then provide a one-stop-shop index pointing you to Epstein Becker & Green, P.C. (“EBG”) and governmental resources to help you comply with existing and COVID-19-specific federal, state, and local regulations.

What Does “Stay at Home” Mean for My Business?

The Order requires “all individuals currently living within the State of Illinois” to “stay at home ...

On Monday March 23, 2020, President Donald Trump signed an executive order aimed at preventing hoarding and price gouging.  Attorney General William H. Barr indicated that the order is authorized under the Defense Protection Act, which allows the United States to compel private industry to assist in meeting national defense needs in response to national emergencies.

The new executive order empowers the Health and Human Services Secretary to designate supplies as “critical.”  Hoarding – accumulating quantities beyond those reasonable to satisfy personal or business needs ...

Department of State Suspends Routine Visa Services

On March 20, 2020, in response to significant worldwide challenges related to the novel coronavirus (“COVID-19”) pandemic, the Department of State announced that routine visa services will be temporarily suspended at all U.S. embassies and consulates. Further, embassies and consulates will cancel all routine immigrant and nonimmigrant visa appointments. Please note that services will continue to be available to U.S. citizens, and applicants with an urgent matter and need to travel immediately should follow the ...

Joining California, Delaware, Illinois, Louisiana, Massachusetts, New Jersey, New York, Ohio, as well as multiple counties and cities, on March 23, 2020, Michigan’s Governor Gretchen Whitmer issued Executive Order 2020-21 (COVID-19) (“Order”), ordering that all Michigan residents “shelter in place” in response to the novel coronavirus (“COVID-19”), effective 12:01 a.m. on Tuesday, March 24, 2020, and continuing through April 13, 2020, at 11:59 p.m.

Among other things, the Order prohibits an employer from requiring its workers to leave their homes, unless ...

On Saturday, March 21, 2020, New Jersey Governor Phil Murphy signed two Executive Orders to bring state-wide consistency to the mandated restrictions and closures arising from the COVID pandemic. The first, Executive Order 107 (Order 107) requires all nonessential New Jersey private businesses and nonprofits to close to the public (with certain exceptions), details restrictions and guidelines for those that are not required to close, and requires residents to stay at home unless they are engaging in excepted conduct.  Order 107 supersedes and increases the prior restrictions ...

The COVID-19 pandemic has leveled a blow against businesses everywhere.  The Governors of New York, California, Illinois, and Pennsylvania, for example, have ordered all non-essential businesses to close their physical locations and the California Governor has ordered all residents, except those performing essential functions, to stay home.  Governors across the country have issued orders restricting various business activities.  The trend is likely to continue in the coming weeks and to adversely impact the bottom line of many businesses.

Some businesses, however, may have ...

On March 20, 2020, New Jersey Governor Phil Murphy signed legislation (A3848), which bars employers from taking any adverse employment actions against employees who take, or request, time off due to an infectious disease that could affect others at work based on a written recommendation of a New Jersey licensed medical professional.   It also precludes an employer from refusing to reinstate the employee to the position held when the leave commenced with no reduction in seniority, status, employment benefits, pay or other terms and conditions of employment.  Although ...

On March 20, 2020, the U.S. Department of Homeland Security (“DHS”) announced that it is temporarily amending the Form I-9 verification and reverification procedures that require company representatives to physically review the original document(s) that verify U.S. work authorization.

Under INA § 274A and 8 C.F.R. § 274a, employers are required to verify original documents that confirm the work authorization of any new hire within three days of that new hire’s start date. With the 2019 novel coronavirus (“COVID-19”) pandemic, many companies have decided to ...

As we explained in an earlier post, the Colorado Department of Labor and Employment (“DLE”) has issued new Health Emergency Leave with Pay (“HELP”) Rules in response to the coronavirus. Effective March 11, 2020, the HELP Rules mandate employers provide four (4) days of paid sick leave for employees in certain industries who have flu-like symptoms to receive COVID-19 testing. The DLE has since released FAQs to clarify some ambiguities in the HELP Rules.

Four Calendar Days of Paid Sick Time

Per the FAQs, the four days of paid sick leave are measured in calendar days. This ...

On March 17, 2020, the District of Columbia passed the COVID-19 Response Emergency Amendment Act of 2020 (the “Act”), which extends additional benefits under the District’s unemployment insurance (“UI”) law and the D.C. Family and Medical Leave Act (“DCFMLA”), and among other things also provides various forms of business relief. The Act is effective immediately.

DCFMLA Expansion

The Act expands the reach of the DCFMLA to provide “declaration-of-emergency” (“DOE”) leave to employees unable to work as the result of the circumstances giving rise to a ...

In a news conference on March 20, 2020, New York Gov. Andrew Cuomo ordered all nonessential New York State private businesses and nonprofits to reduce their workforce reporting to work by 100%  The announcement essentially amends Executive Order 202.6 (“Order”), issued by Gov. Cuomo on March 18, 2020, which required a 50% workforce reduction, by no later than March 20th at 8 p.m. (On March 19, 2020 Gov. Cuomo had announced a 75% required reduction, which has now been superseded).

The Order requires businesses and nonprofits to use telecommuting and work-from-home procedures ...

During this global health emergency, many employers are facing the necessity of curtailing operations and imposing temporary layoffs or furloughs with their workforce.  As a critical consideration, employers have been asking whether and to what extent they may permit group health care coverage to continue during a period of temporary layoff or furlough.

The following questions and answers provide some general guidelines and legal issues to consider in deciding whether to extend group health coverage during a temporary layoff or furlough.

What do we mean by temporary layoffs or ...

On March 17, 2020, the Equal Employment Opportunity Commission (EEOC) posted an article on its website, “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19.”  The article confirms that workplace anti-discrimination laws enforced by the EEOC remain applicable, but that nothing in those laws interferes with or prevents “employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.”

In addition, the article provides a link to guidance the ...

On March 10, 2020, the New York Department of Financial Services (“DFS”), which regulates a wide variety of financial institutions, including banks, insurance companies, and investment advisors doing business in New York, issued a series of letters regarding the response to the Novel Coronavirus (“COVID-19”).   In addition to providing guidance, DFS has asked all regulated financial institutions to provide “assurance” that they have plans to address the operational and financial risks associated with COVID-19.  A copy of the letter to regulated financial ...

As the United States and the rest of the world hunker down in their homes to slow the spread of the novel coronavirus (COVID-19), many organizations have implemented “working-from-home” procedures that are designed to protect the health of the employees.  Working-from-home, however, presents heightened threats to the cybersecurity of benefit plans, including the plan’s assets and employee data that is collected, transmitted, and stored with regard to employee benefit plans.  Plan sponsors and fiduciaries have asked about the particular risks that working-from-home ...

The COVID-19 global pandemic has created a multitude of business and workforce challenges for employers.  In addition to addressing organizational issues, employers that sponsor employee benefit plans and plan fiduciaries must continue to manage and administer the benefit plans as well as address plan participant inquiries during these unprecedented and uncertain times.

One area where plan fiduciaries are seeking guidance concerns oversight of defined contribution plan investment options and any additional actions that they can take now with respect to monitoring such ...

A post on the Management Memo blog will be of interest to many of our readers: "Coronavirus Considerations for Employers with a Unionized Workforce," by attorneys Adam S. Forman, Michael S. Ferrell, Steven M. Swirsky, and Elizabeth "Libby" Martin of Epstein Becker Green.

Following is an excerpt:

As we have discussed in prior Advisories, the 2019 Novel Coronavirus (“Coronavirus” or “COVID-19”) public health emergency is raising important issues for employers addressing rapidly developing disruptions to the workplace and the lives of employees with mass school ...

As many employers and employees in the State of New York know, when an individual files claims for unemployment insurance benefits, New York Labor Law, Section 590, Subdivision 7, has a mandatory seven day waiting period before unemployment benefits may be paid.

On March 7, 2020, Governor Andrew Cuomo issued Executive Order No. 202.1, declaring a State disaster emergency for the entire State of New York (the “Order”). The Order, which is entitled “Suspension and Modification of Laws Relating to the Disaster Emergency,” suspends and modifies many existing laws.

This ...