To Our Valued Clients and Friends:
As we all face the uncertainty of the Coronavirus pandemic, we first and foremost want to extend our thoughts and prayers to those who have been personally and professionally affected.
Second, we want you to know we are here for you. You often hear of us say that “we are a part of your management team.” We mean it. We are not just your attorneys, but we are a part of your team. In times like this, use us as such.
Over the past several weeks, we have been in the trenches with clients. Our attorneys, paralegals and staff remain available, committed and dedicated to providing you with the highest level of legal services during these uncertain times. Our firm remains operational through alternate meeting methods including video and telephone conferencing and electronic document signing. Utilizing these methods, we are able to handle all case related activities seamlessly (with an occasional Zoom bomb by a pet or child!).
Third, we never want your financial well being to be a factor in reaching out to us for guidance. We take tremendous pride in serving our clients through good times and bad. While we plan on issuing invoices for services and expenses on schedule as requested by several of you, we will always work with our clients and offer the maximum flexibility to our clients. We understand the financial difficulties presented by current circumstances and our intent is not to place additional stress on our clients.
Finally, questions have been pouring in from clients regarding the impact of the Coronavirus pandemic on their businesses. New requirements are being placed on employers daily by federal, state and local governmental bodies. Since so many of you have the same questions, we thought it might be helpful for you to see the advice we are providing in response:
Question: I am an essential business and have employees working on site. Do I need to provide them with face masks?
A new Executive Order requires employers to provide employees who come into contact with customers or the public with face masks. If employees do not come into contact with the public, you should still encourage employees to wear face masks to work and around co-workers, along with maintaining social distancing, frequent handwashing and disinfecting work and common spaces.
Question: What kind of employee leaves are now required in connection with the Coronavirus?
For those of you sick of reading long articles from law firms, here is a quick visual snapshot of what you need to know: COVID-19 Leave Chart.
The federal and state paid sick leave provisions are in addition to any accrued paid time off available to an affected employee and no, you can’t make employees burn their available PTO first. Also, federal and state law run concurrently – that is, as long as you comply with federal law (which is more generous in qualifying reasons for leave and, for small businesses, more generous in the amount of leave required), then you will comply with New York law as well. Employers with 500 employees or more are exempt from the federal leave provisions.
Question: Do I have to put employees on notice of these leave provisions?
Yes. The required notice for the FFCRA can be found here. Obviously, with most employees working from home these days, it may not make sense to post this in a workplace with no employees. Therefore, “posting” this notice will require many employers to send it to their employees electronically. Of course, if you are an essential business and have employees on site, post this in a centralized location with your other required posters.
Similarly, although New York Emergency Paid Sick Leave runs concurrently with the leave provided under the FFCRA, you are still required to notify employees of their right to leave under this law. We have advised our clients to send out an Employee Handbook Addendum when they send out the FFCRA notice that reads something like this: NYS Emergency Paid Sick Leave Policy.
Question: About half of my workforce perform duties that can only be performed on-site. If I furlough my employees until operations resume, will they be able to collect unemployment benefits?
Yes. Employees who are furloughed (i.e., placed on a temporary unpaid leave status) are immediately eligible for unemployment benefits as a result of an Executive Order eliminating the 7-day waiting period. On March 27, 2020, Congress approved the Coronavirus Aid, Relief and Economic Security Act (CARES Act). Part of this legislation expands eligibility for unemployment insurance for workers who are displaced due to COVID-19. For individuals eligible for state unemployment benefits, it provides an additional weekly $600 federally funded payment for up to four months. It also makes federal funds available to states to fully fund work share programs, under which employees receive partial unemployment benefits if work hours are reduced but not eliminated by their employer.
Individuals who are out of work for more than four months will continue state unemployment benefits, which were also expanded under the CARES Act from 26 weeks to 39 weeks.
Question: An employee has asked me to furlough them so they can collect unemployment insurance, but I am an essential business and need them to work. What should I do?
To be eligible for unemployment benefits, an employee must be out of work through no fault of their own. If you still have work for an employee to perform, the employee generally cannot quit or otherwise refuse to work in order to collect unemployment benefits. As part of filing a claim for unemployment insurance, the employee will be asked a series of questions that include whether they lost their job through no fault of their own and whether they are ready, willing and able to work. False statements constitute unemployment insurance fraud.
Question: What about the employees who do not feel comfortable coming to work because they have an underlying health condition and are considered “high risk”?
For employees’ own underlying medical condition, we recommend looking at the situation like a reasonable accommodation of a disability under your policies. First determine if they can work from home. If so, document the accommodation and carry on. If not, you may grant a leave of absence as an accommodation. The employee may be eligible for disability benefits and, if not, may be eligible for unemployment benefits.
Our country and economy will emerge from this crisis stronger than before. We are also confident that our clients will emerge from these terrible circumstances better prepared. This is why we are forward-focused and in a position to help each of you emerge from this crisis, to rebound and thrive. As always, please feel reach out to any member of our team if you have specific questions or concerns. We hope you, your families and your businesses are safe and healthy. Call us if you need anything.