April 2020

I don’t know how to start this month’s update other than by stating that March was certainly the most trying month of my career. I have been through blizzards, hurricanes, mass flooding, mergers, company acquisitions and sales, but never anything remotely like what has been faced with the COVID-19.

As you can imagine, the update this month will be almost entirely devoted to COVID-19 related items. Every month we have the small print disclaimer to review and verify any specific legal or policy matter, and this month I want to stress this more than ever, since both Federal and State programs and guidance seem to be changing on a daily basis. Below is what we know at the time of writing this update.

NY companies are trying to get their thoughts around the COVID-19 Paid Sick Leave. The updates below are some of the key points.

Eligibility for this leave is much more restrictive than the Federal equivalent, with NY requiring that employees must be subject to an agency mandated order of quarantine or isolation for COVID-19, not be asymptomatic, and not be physically able to work remotely.

The amount of leave available to qualified employees is 14-calendar-days (5 calendar days if employer has 11-99 employees and 0 days for employers 10 and under) at his/her regular rate of pay based on their normal work schedule during this period. This time period is also job protected.

This leave is also separate from any other paid time off that is accrued by the employee. Employees of employers with 100 or more employees can’t use NY Paid Family Leave or Short-Term Disability wage replacement benefits if their quarantine order lasts longer than 14 calendar days.

On March 27th, the Federal Government passed the long anticipated $2 trillion CARES Act. The CARES Act supersedes the NY legislation in areas where it is a richer program. Amongst the key areas are the following:

The emergency paid-leave requirements in the legislation only apply to businesses with fewer than 500 employees. These provisions went into effect on April 1st, and will be in place until the end of the year. The Paid Sick Leave provides up to 80 hours of benefits and, for much broader reasons than the NY program beyond the agency order, you can qualify with a health care provider advisement, if you have symptoms and are seeking a medical diagnosis, and/or, if you are caring for someone who is quarantine or self-isolation. For employers, a major difference between the Federal program and NY State is that the CARES Act Paid Sick Leave will be 100% refunded with a payroll tax credit.

The Family Medical Leave Act (FMLA) was also expanded (for employers under 500 employees) to allow employees up to 12 weeks of job protected leave when they can’t work because their minor child’s school or day care is closed due to COVID-19. The first ten days are unpaid (but the Federal Paid Sick Leave may be applied), but the next up to ten weeks allows eligible employees to receive 2/3rds of their regular pay, capped at $200 a day.

Significantly expands unemployed benefits by potentially adding an additional $600 in weekly unemployment benefits for up to 4 months. Also included are the self-employed and Independent Contractors, two groups typically excluded from collecting unemployment benefits.
Retirement plans also are covered by increasing the plan loans available, temporarily waiving certain required minimum distributions, and delaying certain filing deadlines.

One area, as of the time of this update, that is still a little unclear is how does Governor Cuomo’s “Matilda Law” apply to employers? This was the Governor’s (named after his Mother) restrictions on activity for those over 70, immune compromised people, and those with underlying illnesses.

In a couple other NY items: 1) NY State temporarily eliminated its waiting period to collect (if you qualify) unemployment insurance benefits. 2) The State also limited non-remote work to Essential Business, although the list of industries considered “essential” is pretty long. There is also a process to appeal for your specific company to be placed on the “essential” list if you do not see your industry.

With many companies utilizing a remote workforce, the issue of how to do an I-9 for a newly hired person has surfaced. The Department of Homeland Security (DHS) has slightly relaxed their review requirements for companies that have gone completely remote. In this specific situation, you can review the Section II documents via video conference or e-mail, and then write “COVID-19″as the reason you could not do a physical inspection. Once the COVID-19 situation clears and normal business resumes, you then have three business days to do an in-person verification of the documents.

E-Verify (like everything else) has been effected by the COVID-19. Cases must still be created within 3 business days of the date of hire, however if there was a delay related to COVID-19, they can enter this as the reason. If there is a “tentative non-confirmation” situation, the resolution time may be extended (if needed) due to office closures.

A couple of dates in April to remember:

April 16th – The National Labor Relations Board (NLRB) union election modifications go into effect restoring the time needed between a Regional Director’s order and an election back to Pre-Obama time. On a related note, the NLRB (on March 19th) suspended union elections due to COVID-19 until further notice.

April 27th – The NLRB final rule governing joint-employer status under the National Labor Relations Act goes into effect. The new rule brings the core of the joint-employer standard back to where it was prior to the Obama Administration.

We have now completed another update. Many of the items covered above are quite complex, and a short paragraph summary does not begin to address the subject. We encourage you to further research any of the items above that are of interest to you. Stay safe and well, and we will update you again in May with what I hope is much happier news.

As always, best of luck in your job search.

The following has been prepared for the general information of RochesterJobs readers. It is not meant to provide advice with respect to any specific legal or policy matter and should not be acted upon without verification by the reader.

Joe Stein
WNY Human Resources Professional

Feel free to contact Joe Stein regarding questions or comments at:
Joe Stein


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